Thursday 7 April 1994

Residents' Rights Act, 1993, Bill 120, Ms Gigantes / Loi de 1993 modifiant des lois en ce qui concerne les immeubles d'habitation, projet de loi 120, Mme Gigantes


*Chair / Président: Brown, Michael A. (Algoma-Manitoulin L)

*Vice-Chair / Vice-Président: Daigeler, Hans (Nepean L)

Arnott, Ted (Wellington PC)

Dadamo, George (Windsor-Sandwich ND)

*Grandmaître, Bernard (Ottawa East/-Est L)

*Johnson, David (Don Mills PC)

*Mammoliti, George (Yorkview ND)

*Mills, Gordon (Durham East/-Est ND)

Morrow, Mark (Wentworth East/-Est ND)

Sorbara, Gregory S. (York Centre L)

*Wessenger, Paul (Simcoe Centre ND)

*White, Drummond (Durham Centre ND)

*In attendance / présents

Substitutions present / Membres remplaçants présents:

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

Cordiano, Joseph (Lawrence L) for Mr Sorbara

Marland, Margaret (Mississauga South/-Sud PC) for Mr Arnott

Owens, Stephen (Scarborough Centre ND) for Mr Dadamo

Wilson, Gary, (Kingston and The Islands/Kingston et Les Iles ND) for Mr Morrow

Also taking part / Autres participants et participantes:

Ministry of Housing:

Gigantes, Hon Evelyn, minister

Douglas, James, policy adviser

Melville, Tom, legal counsel, Ministry of Municipal Affairs

Clerk / Greffier: Carrozza, Franco

Staff / Personnel: Gottheil, Joanne, legislative counsel

The committee met at 1540 in room 228.


Consideration of Bill 120, An Act to amend certain statutes concerning residential property / Projet de loi 120, Loi modifiant certaines lois en ce qui concerne les immeubles d'habitation.

The Chair (Mr Michael A. Brown): The standing committee on general government will come to order. The purpose of the committee meeting this afternoon is to consider, clause-by-clause, Bill 120, An Act to amend certain statutes concerning residential property.


The Chair: Could I have order in the room, please. Mrs Marland.

Mrs Margaret Marland (Mississauga South): I didn't want to interrupt your introduction, Mr Chair.

The Chair: I appreciate that, Mrs Marland.

Mrs Marland: I have a very serious problem. I don't know whether the government members have experience in this, but when we in opposition draft amendments, we send them to legislative counsel to be written. We just give them the draft of the intent of an amendment and they draft it so that it's appropriately worded. They will also tell us if the amendment is contrary and wouldn't stand as an amendment, in their opinion.

What has happened to our amendments is rather regrettable, because unfortunately they were misnumbered. I'm waiting for the new ones to come, actually. I thought they were here, but they haven't arrived with the new numbering. Some of them, because of the misnumbering -- I thought they were all in section 3. Did we finish up on March 10 in section 3? That's what I have marked in my thing. Anyway, most of our amendments were in section 2.

I have a letter here from the legislative counsel. The person who drafted them is away this week, and I have a letter here from Joanne Gottheil, explaining that she has now provided us with replacement amendments.

So I guess what I'm doing, Mr Chair, through you, is requesting unanimous consent from the committee to present amendments to the committee that are replacing some of our originals which were incorrectly numbered and may in fact apply to some sections that we've already dealt with, which will mean reopening those sections.

Now, I've never had this happen before, and it's not something that, frankly, I have control over.

The Chair: Could we just leave this issue?

Mrs Marland: Sure.

The Chair: It's a very serious issue, but the Chair has some business that has to be looked after, and we'll come back to this in a moment.

Mrs Marland: That's fine.

The Chair: The first order of business that has to be looked after today is the adoption of the subcommittee report that all members will have before them. I would ask that someone so move.

Mrs Marland: What did the subcommittee report say?

The Chair: It just authorizes us to sit this afternoon.

Mr George Mammoliti (Yorkview): So moved.

The Chair: All in favour? Carried.

The minister also had asked to make a brief statement to clarify an issue that had arisen out of the committee hearings in March. The minister may make that statement, and then I think Mrs Marland has a serious problem, and we'll try to deal with that.

Hon Evelyn Gigantes (Minister of Housing): As I looked back at Hansard from our committee hearings on March 10, 1994, I realized that I would like to be able to give a better impression of what was happening at that point than Hansard seems to provide.

Members will recall that we were having a very lively discussion about a potential amendment to a proposed amendment, and whether the addition or subtraction of a certain phrase would give clarity or would give confusion to the intent of the motion. At one point, our very good lawyer support from the Ministry of Housing, Michael Lyle, gave an interpretation of the addition or subtraction, I don't recall which at the moment, and I said jokingly, "I don't believe you." We all laughed and proceeded from there. I had intended to be humorous; certainly not disrespectful. So I wish to put on the record that I meant no disrespect, and as all members of the committee do, I very much appreciate the excellent legal support that we get as we do our work here.

Mr David Johnson (Don Mills): The minister has indicated that we all laughed. Can I just beg leave to take difference with that. All of us didn't laugh at that. Some of us may have laughed, but all of us did not laugh.

Hon Ms Gigantes: I'm sorry. I thought we all had.

The Chair: I'm certain that Hansard cannot determine that.

Hon Ms Gigantes: We could have taken a laugh vote, a recorded laugh.

Mr Bernard Grandmaître (Ottawa East): I was shaking my head.

Mr Drummond White (Durham Centre): You always shake your head when you laugh.

Hon Ms Gigantes: I heard you giggle, Bernard.

The Chair: I think Mrs Marland's concerns can be accommodated. The clerk is speaking to Mrs Marland at the moment, and I believe that procedurally we can find a way to accommodate Mrs Marland's technical difficulty, which of course was not of her own volition. Would the clerk like to explain how we can deal with Mrs Marland's amendments?

Mrs Marland: I should explain that the author of my letter is Joanne Gottheil. She is here today so she can explain her letter.

Clerk of the Committee (Mr Franco Carrozza): My understanding, Mrs Marland, is that the amendments we are talking about, if you can look at your yellow package -- the identification number is at the top right-hand corner -- are 13, 14, 15, 16 and 17. You will note that they all have section 3.1. In reality, it should be section 2.1, because they are on the same section, which would be section 89, which is the same section as in amendment 7. So it's simply that when Mrs Marland introduces the amendment, if she were to say section 2.1, it would be just fine.

Mrs Marland: So it's 13, 14, 15 and 16.

Clerk of the Committee: And 17.

Mrs Marland: And 17. It's five then.

Mr Grandmaître: Amendment number 13.

Clerk of the Committee: Yes, 13 will come after number 7.

Mr Grandmaître: After 7. Is this --

Clerk of the Committee: Yes, because you will note that number 7 proposes to request to open 2.3 of section 89. Mrs Marland's amendment is section 3.1 of section 89. So they can follow one, follow the other. Okay?

Mr Grandmaître: Okay. We're on track.

Clerk of the Committee: You will note that amendment number 8 proposes to open section 91, and number 14 also is 91. So you could put those two together. Again, number 9 and number 15 propose to open section 106.

Mr Grandmaître: Yes. It will be 15 and 16.

Clerk of the Committee: Number 9 and 15, number 10 and 16, and then we have number 17 and number 11. I'll keep the score for everybody.


The Chair: When we completed our clause-by-clause review during March, we were dealing with an amendment moved by Mr Cordiano to section 2.2. We had divided that section, which members would see as sections 81.1 and 81.2. We had carried the first part, and now we are dealing with section 81.2. Maybe Mr Cordiano would like to refresh our memory on this section.

Mr Joseph Cordiano (Lawrence): I certainly would like to propose, with the unanimous consent of the members of the committee, an amendment to that section to rectify a problem that has since come to light. I believe that we've discussed this with the minister and we have some agreement on this amendment that I would propose.

The Chair: You're talking about section 81.1, the section that was previously carried.

Mr Cordiano: Right, and I would like to reopen that section because there is an omission or an oversight, if you will, the intended consequence of which is not going to be achieved. I have to open this section up again because, if I may, just to explain it --

Interjections: Agreed.

Mr Cordiano: Okay? Thank you.

The Chair: Wait a minute, Mr Cordiano, we'll stand down section 81.2. Can I have unanimous consent? Agreed. We'll stand down section 81.2 and we'll now deal with the agreement we now have to deal with section 81.1.

Mr Cordiano: Essentially, this proposed amendment to the amendment would make clear the fact that this section would only apply, or the agreements --

The Chair: Do you want to make the motion?

Mr Cordiano: Okay, let me read into the record the motion.

Section 2.2: I move that subsection 81.1(1) of the act, as set out in section 2.2 of the bill, be amended by inserting after "agreement" where it first appears "with respect to residential premises to be occupied by a person in the premises for the purpose of receiving care services, whether or not receiving the services is the primary purpose of the occupancy."

I have copies that we can distribute to the members.

The Chair: That would be appreciated. The clerk will do that for you if you'd like to explain the reason for the amendment.

Mr Cordiano: An explanation?

The Chair: Yes.

Mr Cordiano: The intent of the amendment is clearly to allow only those residents in care homes who would be required to come up with this agreement with the operators of the home -- to restrict this or to make it so that this agreement would only apply in those instances where care is provided, so that it would not apply to other tenants in other situations. That was the intention of my original amendment, and there is some question about whether that would be accomplished by the original amendment alone, standing as it would without this further clarification.

The Chair: Further questions, comments?

Mr David Johnson: Just to say that it makes it abundantly clear who the tenancy agreement and the clause applies to. I'm just trying to determine, without the amendment, whether that would be the case or not, but I suppose it's better to be safe than sorry. So it sounds like a good amendment.

The Chair: Questions or comments? If not, shall Mr Cordiano's amendment to section 2.2 carry? Carried.

We'll now deal with the stood-down section, section 81.2. You have previously moved this section, Mr Cordiano, so you can just refresh our memory as to the reason that you're putting this amendment.

Mr Cordiano: Just to bring myself up to speed, we're on the "right to consult," subsection 81.1(1)?

The Chair: "Accessory apartment registration."

Mr Cordiano: I'm sorry. Yes, we did pass that earlier section, correct?

The Chair: Yes.

Mr Cordiano: I just wanted to make sure that we did pass the previous section.

The Chair: What we did was amend sections we had passed and had been part of the bill.

Mr Cordiano: I'm getting it together here. Did I move this? I'm sorry. I did move this.

The Chair: Yes.

Mr Cordiano: Okay, fine. So some debate on this, accessory apartment registrations. It has been our view throughout these proceedings that we don't believe --

Mr Stephen Owens (Scarborough Centre): On a point of order, Chair: Sorry to interrupt you, Joe, but there's this very irritating buzzing. I can hardly hear Joe. Is that something that's going on in the construction?

Clerk of the Committee: There's nothing we can do about it.

Mr Grandmaître: It's the heating system.

The Chair: We are attempting to deal with that, Mr Owens. We are having the same difficulty you are.

Mr Owens: If you could speak up, Joe. I can't catch you over here.

Mr Cordiano: I will try to do that.


Mrs Marland: Can we get that on the record?

The Chair: No. Order. We'll have to be exceptionally quiet while we listen to Mr Cordiano.

Mr Gary Wilson (Kingston and The Islands): Now you know how to get Steve's attention.

Mr Cordiano: We are somewhat dysfunctional this afternoon, I think.

Accessory apartment registration: What are we dealing with on this? I'm sorry. Actually, this is the heart of the issue as far as I'm concerned with regard to Bill 120, in that it speaks to the greatest concern that we have in an effort to make accessory apartments safe places to live.

We believe that it's absolutely essential to have this registration process in place. I've spoken about this throughout the hearings, and we heard from AMO, we've heard from fire chiefs across the province. Today in the Legislature my leader brought up the issue that was dealt with in the inquiry that was recently held in the tragedy in Mississauga. The recommendations of that inquiry suggest that there be a registration system.

Quite frankly, I have heard the minister's arguments about registering: There is no real need to register these units because once you make them legal, then at that point, by some magical formula, people will come forward and make their apartments conform to codes, both fire and building, and other requirements that are essential to make these units safe. I just don't believe that will happen. The minister has suggested that by requiring these units to be registered, it still won't happen.

What I would say to the minister is that both efforts are inadequate, but ours is a better approach. It moves the yardsticks a little further than what you've suggested. In the absence of a perfect solution, requiring units to be registered would, at the very least, give rise to everyone who lives in a unit or everyone who lives in a neighbourhood where there are units to be able to then ascertain whether in fact these units have been registered, and perhaps in one phone call determine that a unit has been registered and therefore is required to have an inspection, that the municipality is aware that the unit exists.

In the other scenario that you've proposed, Minister, where it's not required that the unit be registered, you can have a tenant living in that unit, the tenant may not ever be aware of what is the code, what is the standard, that in fact he's living in an unsafe unit. That is the real tragedy of all this.

You're requiring in your scenario that tenants be as knowledgeable, or you're assuming that they're knowledgeable, about what is safe and what is not. I would argue with you, Minister, that this is not the case, that most people in fact are not aware of what is required for a unit to be safe. For God's sake, people aren't even aware that they could go and buy a smoke detector for $10 or $12 and install it themselves.


These are the kinds of stories we've heard from fire chiefs across the province. We've heard that from other people, inspectors etc, where there are homes that haven't ever been inspected for many, many years with regard to fire safety where there are still not smoke detectors.

We've had recent tragedies. I recall one, I believe it was in your part of the world, Minister, that terrible, terrible tragedy where those children were killed in a fire, where there was no smoke detector in the home. I mean, these were children, and no one bothered to install a simple smoke detection device, which costs around $12 or $14. Had that been in place, their lives would have been saved.

To expect that the tenants of basement apartments are going to be knowledgeable that their units are unsafe and that they need to be made safe and that they then will turn their attention somehow, call the fire chief, call the local municipality, call someone, to say, "Hey, this unit is not safe," or "How can I find out that this unit is safe?" -- you see, that's the point. I just cannot see how this is not sensible to do. At the very least someone would be able to call a municipality to know if that unit would be registered. If that unit hasn't been registered, then the chances of it having been inspected are next to nil. The chances that this unit would be safe are not very good either.

If you had it registered, then by the efforts that would have to be made to have an inspection, which is what we call for in this amendment -- the requirement for an inspection follows as part of this amendment -- you would get that action initiated because the municipality would be made aware of that unit. The municipality would know it's there, then would in sequence prepare for these inspections, and these inspections could take place, I believe, over a reasonable amount of time.

Again, we provide for a fee to be recovered by the municipalities on a cost-recovery basis so that this entire mechanism would proceed with some order. One of the excuses for not proceeding would certainly not be the funding mechanism by which inspections would then have to be paid for, because a fee would cover off those costs. I think it's absolutely critical.

The last point, Minister, is with regard to a penalty. I don't recall that there is anywhere in the bill any direct mention of a fine for not bringing units up to standard. There are fines for violating the fire code, there are fines for violating building codes, but there is no direct fine for not bringing these units up to standard, putting the onus on the owner of the unit.

I just think the arguments that have been made -- and with all due respect, Minister, I just think it's not an issue that should be argued over with respect to partisan position. It is absolutely critical that we move those yardsticks forward, and as I said earlier in my remarks, both approaches are inadequate. Both do not secure 100% that in fact all units will be made safe. Probably nothing could do that, but it's not even close to being ideal. I just think that if we move forward with this registration system, then at the very least it will work much better than what's being proposed in the bill currently.

I've been told, Minister, as well, that in fact this problem may be at some point dealt with in an indirect fashion, and probably dealt with over the issue of insurance. I'm almost tempted at this point to deal with this matter in a different way. I was tempted to bring forward an amendment that would somehow recognize the need to have an insurance document that would state clearly that your unit was certified and insurable and was insured, in fact.

Again, that's probably more a private sector matter that will be dealt with by insurance companies on their own forms, so that speaks to the need for an inspection to be done, the need for the unit to be up to standard.

Insurance companies will probably require, as a result of Bill 120, that an owner disclose that he or she has a basement unit or has an accessory apartment in their home, and that in fact it meets all of the necessary codes and safety requirements. That will probably be required in, as I say, an application that's made for insurance and the disclosure will have to be made, and if it's not made then you would violate the terms of the contract and you would be uninsured.

That may be how it's dealt with in the end, but I think to wait for that is to put people in jeopardy in the interim. Furthermore, I still believe that to just expect that would cover all of our problems is not something I would support. So I go back to this notion that we should register these units.

The Chair: I have Mr White, Mr Owens, Ms Gigantes and Mrs Marland.

Mr White: I would like to support my friend Mr Cordiano's amendment. There's an awful lot of excellent merit to his point. Unfortunately, as I read the amendment, it makes it very, very difficult to support it because, frankly, it sets out an unnecessary obligation on the part of the municipality.

It says that the municipality should be getting into offering some sort of a rent registry office, something which it doesn't currently do. It says, "No person shall rent out an accessory apartment unless the apartment is registered with the municipality...."

My friends in the municipal field, in Ms Marland's municipality etc, are constantly complaining about the number of duties and obligations which the provincial government is thrusting upon their shoulders, and here we have Mr Cordiano suggesting that they have to have some sort of a rent registry.

Actually, it doesn't suggest they have to; it says that no one shall rent out an apartment unless there is one present in that municipality, but the municipality doesn't have to offer it. That's a bit of a catch-22.

If I were to convert my home into a home with an accessory apartment, in order for me to rent out that apartment my municipality would have to have a registry, but it doesn't have a registry. That's the catch-22. The municipality is not obligated to have this registry but I'm obligated to register my apartment.

Obviously, you can't have it both ways. If the obligation's on the municipality, it should be also upon the owner of that dwelling. If it's on the owner of the dwelling, it should also be on the municipality. There should either be both a "shall" here and a "shall" there or a "may" here and "may" there. There should be an equivalent level of obligation but there isn't in this amendment.

Mr Grandmaître: Do you want to bring in an amendment?


Mr White: No, this is not an equivalent issue. It creates an added barrier, an unfortunate and unnecessary barrier. For those reasons, I have difficulty supporting Mr Cordiano. I think that his concerns are very real and very genuine, but unfortunately his amendment is written in such a way that it cannot be supported by anyone who wishes to deal with these issues. We need to have safe accommodations. We need to be sure that those accommodations are adequate, that the fire alarms are present, that the adequate entrances and entryways are there. That is one of the issues which this bill deals with and which the Ministry of Housing is dealing with. But this amendment does not facilitate that.

I would suggest that if we had something which suggested a voluntary registration -- why, we have that already in my neck of the woods, where people who have illegal, non-conforming basement apartments have those apartments registered on a voluntary basis for potential tenants. Of course, you could have a situation where that registration would reflect upon the adequacy of the health and safety of those accommodations. But that is a voluntary arrangement. This is a mandatory arrangement.

I would suggest that a voluntary arrangement is something which can happen outside of the law. Our communities in Ontario do not want an additional obligation. They don't want to get into a situation where they are acting as some sort of real estate agent for their communities. What they want is to ensure that accommodations and their citizens are safe. They don't want to act as realtors. I'm sure that if they were forced to act as realtors by an amendment such as Mr Cordiano suggests, they would balk, they would resist, they would be fiercely opposed to this bill. For those reasons, I would want to suggest that Mr Cordiano might want to take this back and rewrite it.

Mr Owens: I want to say that I agree with my colleague's comments with respect to the motion put forward by Mr Cordiano.

I do want to add a couple of things, however, and I say this with great respect, Joe, that in terms of the kinds of politics that are being played around the deaths of children and a mum, I feel very uncomfortable about this, in raising the issue of a registry in conjunction with fatalities. I think that you have to admit, and I will admit, that whether we have a registry or not, those people are not coming back. There are some very broken-up lives as a result of these fires and I think that in terms of raising this as an issue, it gives me some discomfort as a human being, quite frankly, to be doing this.

In terms of the registry issue, the minister and I have gone around the block a couple of times on that as well, and the issue of safety is not one that's real. In terms of a registry -- I don't know what part of the city you live in, but I can tell you, in the city of Scarborough, trying to get property standards inspectors out to inspect current private rental apartment buildings is a major, major problem. So if you all of a sudden, as my colleague from Durham indicated, turn the city into a rental agent or a landlord on behalf of the community, if it's your view that by simply establishing a registry, property standards inspectors are all of a sudden going to be out there and saving people's lives, it's just not on.

Mr Cordiano: On a point of order, Mr Chair: I don't want to interrupt the member's flow of thought. I wasn't paying close attention to the member but I hope he wasn't --

The Chair: No, that's not a point of order, Mr Cordiano.

Mr Cordiano: No, this is a point of order. I hope he wasn't imputing motives about what I had said earlier because what I was saying was being distorted by the member and I think it was out of order for him to do that.

The Chair: I see nothing out of order.

Mr Owens: In terms of the issue with respect to whether tenants know or will not know, I can assure the member that from the perspective of the government, it's not our intention to launch a fairly significant piece of residents' rights legislation into the community without doing any kind of education program. That's not only in English but in other languages as well. I think if you recall the advertisements and the educational material that came out around the Rent Control Act, it was quite extensive, quite easy to understand and I don't suspect -- and the minister I'm sure will confirm that my view is correct -- that we're going to launch a major piece of legislation without going out to educate the tenants.

So suffice it to say that I will not be supporting the motion and my colleagues will not be supporting the motion.

The Chair: I would ask members just to keep the private conversations to a minimum or outside. It's very difficult to hear in this room.

Hon Ms Gigantes: This is an important area of discussion in this bill, as Mr Cordiano has indicated. I think it deserves some thorough discussion by members of the committee. What the fear is, I believe, on the part of Mr Cordiano, is that there won't be any penalty for having an apartment which is illegal by nature of poor standards: It is illegal because it doesn't meet the fire code regulations; it is illegal because it doesn't meet the building code regulations. That's the concern that's here. That's everyone's concern. We're agreed on that.

Now, how we deal with that concern in a realistic way without duplicating efforts and without incurring unnecessary costs and arriving at the best possible solution is the question. What is being contended here is that for existing apartments which do not meet fire code standards or building code standards, the proposal of a registry is going to present a deterrent to property owners continuing with an apartment with illegal standards. In other words, you're suggesting that we have a registry in order that people know that unless they are under the registry they can automatically be fined, and to be under the registry they have to meet the standards.

Mr Cordiano: No, I'm not saying that.

Hon Ms Gigantes: Excuse me; in good faith, I'm trying to understand what you're saying. You're saying that each apartment, to be legal, must be registered. We move away from the question of illegality because of zoning; we accept that. Then your concern and your focus is around health and safety.

Mr Cordiano: Right.

Hon Ms Gigantes: In order to achieve the maximum health and safety, you're suggesting a system in which we have a registry, and anyone who is operating an apartment which is not registered -- it has to meet standards in order to be registered -- will be fined. Correct?

Mr Cordiano: You won't zap them that way. I think that it would be reasonable --

Hon Ms Gigantes: How would you do it, then? I'm interested in hearing this.


Mr Cordiano: Just a minute. If I may --

The Chair: The minister has asked Mr Cordiano a question. Mr Cordiano can answer.

Mr Cordiano: If I may, just to clarify, it was our thought that you would, by regulation, if you would agree with this, allow for a period of transition for these units to become registered and for them to be brought up to standard so that you wouldn't just go out and fine those that -- obviously there would have to be a period of transition. What that might be I've left open for regulations to determine, but I think it would be fair to have this period of transition where units would be brought up to standard, where people would be given a reasonable amount of time to make preparations for bringing these up to standard and for getting inspections and for becoming registered.

Hon Ms Gigantes: Suppose we accept that, can I continue the thought? If, on the other hand, we have a scheme, which is the one presented in this legislation, in which an apartment may become legal according to zoning but it is not legal until it meets the standards which are attached to this bill in terms of the fire code, the building code --

Mr Cordiano: Right.


Hon Ms Gigantes: So it sits there. It's not illegal because of zoning but it's not legal until it meets those standards. Then there are several ways in which it can be forcibly, if you want, brought up to standard. Let me suggest, they're very much like the ways that a registry would operate. My concern with a registry I'll speak to again in a moment. It would be a case where either the property owner would seek to be in a situation where the apartment is a legal one, and might be doing so for reasons of insurance or guilt or confessions to priests or I don't know what, but decides that the apartment was going to be legal in terms of its health and safety and in terms of the building code and the fire code.

So the property owner could initiate a request for an inspection, the tenant may initiate a request for an inspection or somebody else may. Under any kind of situation in Bill 120, it is perfectly reasonable for somebody to initiate it. It could be an official of the city, it could be an official of the fire department or it could be a neighbour who calls up and says: "I think somebody's living in an unsafe condition. I'd like you to take a look at it and see if you think it might be in an unsafe condition." There are many ways.

Mr Cordiano: They can do that now.

Hon Ms Gigantes: It's the same process -- let me put it to you -- in effect that we'd go through if there were a registry, except with a registry what we have is a situation where we are setting up an extra layer of bureaucracy. We're saying to the municipality, "You have to set up a registry and run it, operate it, charge people to be on the registry." Certainly, if there are going to be inspections, then the assessment may be affected over time, so the municipality can pick up costs that way. But to say you're going to have to come and get registered, I don't think in reality this is going to improve the situation, because the same kinds of spurs to action will exist in one or the other form.

You're concerned that there is no penalty that is obviously identified in the bill for operating an apartment in an illegal manner, if I can put it that way: not meeting code, not meeting the fire requirements. Could I refer you first of all to subsection 38(3) of the bill. What we're dealing with here is the Planning Act and the application of the Planning Act and identifying that when an official is carrying out the duty of inspection, "No person shall obstruct" --

Mr Cordiano: Did you say 38?

Hon Ms Gigantes: Subsection 38(3). It's on page 23 of the bill.

Mr Cordiano: Yes, okay: "No person shall officer or person acting under...."

Hon Ms Gigantes: Then I refer you to a piece of paper which you don't have and which we can ask the clerk to make a copy of, which is the Fire Marshals Act, which has the attached offence section.

What we haven't done in Bill 120 is duplicate every section of each act which is going to apply. What we've done is we've changed the Planning Act and we've changed the operations within the Planning Act in terms of inspections and requirements before an inspection can take place. We've loosened those up. We also have application of the fire marshal's code and direct regulations developed for apartments in houses. In the Fire Marshals Act, subsection 18(18) reads:

"Every person who fails to comply with an order made under subsection (2), (7), (12) or (17) is guilty of an offence and on conviction is liable to a fine of not more than $10,000 for every day during which the default continues, and the imposition or payment of the fine does not relieve the person from complying with the order."

That's in effect the penalty attached to the draft fire code regulations which are attached to this bill. They're not incorporated within the bill, but they swing into action with this bill, and the penalties are the penalties under the fire code act. This is direct, though; this is not indirect.

Mr Cordiano: That's fine. I would grant that if the penalty is dealt with -- and I suspected it was; I didn't have it before me. There is some measure of consideration for a penalty, obviously, in that fashion, for violations of the fire code. There is also the question of violations of the building code.

Hon Ms Gigantes: Yes, and if you look to subsection 38(4), we're talking about revisions to the Planning Act. Please help, James.

Mr James Douglas: James Douglas, Ministry of Housing. Just to clarify, subsection 38(4) makes obstructing a property standards officer an offence, and the fine which is applied to that is the fine which applies currently to property standards offences. Specifically, there can be a penalty upon conviction of $2,000 for the first offence and not more than $10,000 for a subsequent offence.

Mr Cordiano: I understand that. That is something I had contemplated you were doing, and I just didn't have it with me today. That still does not preclude this penalty which, if in fact we did have a registry system -- it goes back to the registry system. This penalty is attached in that section for violating that first step, which is to register with the municipality. You may not agree with it, but it's still logical to have this penalty in place there, which would be an additional penalty for violating that first section.

Hon Ms Gigantes: If I could, on that question, I think we've got an agreement now -- members can see how the building code amendments that affect apartments in houses and the fire code regulations, which are drafted to deal with apartments in houses for the first time, which are associated with this legislation, have the effect of making sure that there is a penalty attached for operating an apartment which is not legal in so far as health and safety standards are concerned.

Mr Cordiano: And that is the case for every other unit in the province.

Hon Ms Gigantes: In addition to that, the member is suggesting by way of his amendment that he would like to see a registry, and that there would be an additional kind of penalty, an additional superstructure of bureaucracy, an additional requirement on operators of apartments in houses, to register. I don't see that there is anything about what he is proposing that will induce better compliance, because there are already penalties attached to running an apartment which does not meet the legal requirements of the fire code and the building code.

What this is doing is putting in an extra kind of penalty for operating a below-standard apartment, when the apartment is in a house, that doesn't exist for any other kind of apartment. It is that singling out of apartments in houses and that special kind of hoop and threat attached to the operating of an apartment in a house and the extra bureaucracy and cost involved, both for the operator and for the municipality, which he's calling upon to run this registry, that I object to.

On many fronts, I object to this unnecessary addition which he is proposing.

Mr Cordiano: If I may respond to that --

The Chair: No. I'll put you on the list. She didn't ask you a question, Mr Cordiano. Mrs Marland.

Mrs Marland: Just a point of business, Mr Chairman, before I speak to this motion: something I omitted to do at the beginning of the meeting when I was addressing the mixup about our Progressive Conservative amendments. I also want to bring to the attention that there is an amendment that was attributed to us under section 28 which is baffling us tremendously, because --

The Chair: Mrs Marland, I think we should deal with the section we're dealing with and then we can chat about --

Mrs Marland: But it's important.


The Chair: I understand the seriousness and the importance, but I think we could deal with that between sections that would be a more appropriate forum for that clarification.

Mrs Marland: I just want to give notice, because the section 28 amendment attributed to us is not our amendment. It deals with the application of the Rental Housing Protection Act, and I don't want there to be any misunderstanding, because this amendment is totally contrary to our position. We're actually very curious to know where it came from.

The best way to speak to the amendment is to deal with the comments my revered friend Mr Owens made about, why is Mr Cordiano talking about fires and deaths? The interesting thing is that in this whole debate, and all our opposition and all our concern about Bill 120, and all our questions in the House by both the official opposition and ourselves to the minister, we've missed one important point.

The important point we've missed is that we stand up and we ask the questions about Bill 120 and our concerns about it, and we've asked them over and over again. We've attributed our concerns -- in fairness, both parties have -- to the recommendations of the coroner's inquest which took place in Mississauga after the New Year's Day fatalities. Always the minister comes back with -- I'm paraphrasing you, but what you say essentially is, "We won't have any remedy until these apartments are legal."

The one point we have missed totally and which I'm very concerned about is that, as I've said in the House, we've had a set of draft regulations which will amend the fire code to address basement apartments. Those have been available now for a year and they haven't been applied, I guess. I don't what the technical word is for changing regulations in the ministry; they're not proclaimed, obviously, like a bill. They're not implemented. We always get this answer: "We can't implement anything until we get the passage of the bill, because until we get the passage of the bill we do not have legal apartments."

The point we've missed totally is that we do have legal apartments in the city of Toronto. I suppose we should say we're fortunate that the fires haven't been in legal apartments. Those fatalities Mr Cordiano and I have referred to on a number of occasions have not been in legal apartments in the city of Toronto.

I really have to wonder how the minister could sit on new fire code regulations, albeit it's not her ministry that has to enact those; it is the responsibility of the Ontario fire marshal. But her ministry has had input in it and she has defended the fact that those new fire code regulation changes have not been implemented because they're waiting for Bill 120. I have a real concern. I don't know how many legal apartments there are in the city of Toronto, but they do exist in Toronto, and those people have not been protected for a whole year when they could have been.

If the minister and all the government members really want to look at this objectively and really want to get away from thinking, "Of course it's a government bill, and of course the automatic thing is that opposition is opposed to it," then do that. Remove yourselves, and we can remove ourselves from our opposition, and then go the next step and see who else is opposed to it.

When you look at who is opposed to 120 as it stands and look at the recommendations which address the question of this motion on the floor now, which is the registering of these units, then you come to people who know far more about this subject, I say with respect, than the minister or any one of us sitting as members of this committee and, I would suggest, any of the bureaucrats in the ministry as well. That would be someone who represented the Ontario Association of Fire Chiefs at the inquest into the two fatalities in Mississauga.

In the evidence that Chief Hare gave to that inquest, he says, and I quote: "In early 1993 the Task Group on Accessory Apartments was convened by the Ministry of the Solicitor General, office of the fire marshal. This task group was comprised of representatives from government, industry, property owners and tenant groups." Thank the good Lord it didn't include politicians. "Its task was to develop a set of regulations for accessory apartments that could be included in part IX of the fire code. The group reviewed the provisions of the building code and the guidelines that had been developed by the office of the fire marshal to assist local fire departments in setting standards for fire safety for accessory apartments. I had the privilege of serving on the task group as a representative of the Ontario Association of Fire Chiefs. By April 1993 the group had prepared a draft regulation for inclusion in part IX of the code. A copy of the most recent draft is included in your information package." At that point, he's addressing the jury at this inquest.

He goes on to say, "At this time I do not know the status of this document, other than to note that Bill 120 does not mention it and does not deal with any changes or improvements to the Fire Marshals Act or fire code regulations." And he continues in his evidence with a lot of powerful argument.

What I am saying to this committee is that if you don't want to listen to the opposition parties, I can understand that, but I plead with you to listen to someone who is representing the Ontario Association of Fire Chiefs and was invited to do that by the Ministry of the Solicitor General.

He goes on with his concerns talking about registering apartments, which is why this motion is on the floor. In referring to the fire code regulations, which are part of this motion for a registry, he says: "These draft regulations will provide an increased level of safety for ambulatory residents, but do not address the needs of the elderly, children, the handicapped or the impaired. Unfortunately, many of the occupants of accessory accommodation are in these high-risk groups." That is not addressed in this bill.


What he says is, "In addition to the need for improved powers of entry, property owners must be required to register their accessory apartments with the local municipality." He doesn't say "should." He doesn't say, "It would be a good idea." He says "must."

Mr Gordon Mills (Durham East): Who said that?

Mrs Marland: Chief Cyril Hare. Obviously, if he's saying that, he must be basing it on some very powerful evidence. He happens to have been with the Mississauga fire department for something close to 25 years, I think, or more. But he's not speaking on behalf of Chief Cyril Hare and he's not speaking on behalf of the Mississauga fire department; he's speaking on behalf of every one of your fire chiefs. Every one of you in your riding has a fire chief, and that fire chief has said that there must be a registry. So I can't understand why there is such a problem.

It's very funny, humorous -- not funny peculiar, but funny ha-ha -- that the minister is so concerned about setting up a bureaucracy if you have to have a registry. If Bill 120 is going to mean anything, Madam Minister, it's going to mean changes in how basement apartments or accessory apartments can be constructed. When you deal with new ones, if they are large enough, they will need a building permit. They may not all need a building permit: There may be a partially built basement space that doesn't require a building permit to finish it off because there isn't that much work to do, so there may be new basement apartments that are created that you won't know about or the municipality won't know about. But if you want any part of Bill 120 to work -- and I say again, I'm not in favour of basement apartments, but if you want basement apartments and you want to protect people and you want them to have the right for the inspections to prove they're protected, you are in favour of setting up a bureaucracy anyway. You want those apartments to be inspected.

Of course there would be plumbing and electrical inspections, but apart from the plumbing and electrical inspections, the fire inspections alone in Mississauga would equal 87 person-years. You're going to legalize basement apartments. Well, there's a cost to that: electrical inspections, plumbing inspections, building code inspections and, most importantly of all, fire code inspections. So we already have to do these inspections --

Hon Ms Gigantes: Would you be interested in hearing from ministry staff about a couple of the points you've raised?

Mrs Marland: Certainly, when I've finished.

We've got this bureaucracy now that has to do these inspections, and as Chief Hare says, it's 87 person-years alone for 10,000 unregistered apartments in the city of Mississauga. How much more work is it if all of those inspections are being done to register them? I just don't understand this. If you're going to have to have a name and an address, a property owner, a tenant's name -- all that information has to be registered anyway for an inspection to be done. How much more difficult is it to decide to have a formal registry, which is what the motion on the floor is about?

When you look at the final recommendations of the coroner's inquest along with their concerns -- by the way, I should tell you that the city of Mississauga has passed a resolution to ask the province to implement the recommendations of the coroner's inquest. Included in those recommendations are, of course, that Bill 20 provide for right of entry by municipal fire prevention officers without the need of a search warrant to ensure that the unit complies with minimum fire code safety standards.

But the next one is the one that's pertinent to this motion, that:

"Owners of basement apartments be required to register with the municipality.

"All buildings containing basement apartments must have distinct street numbers to ensure that emergency service staff know where a basement apartment exists;

"Municipalities be allowed to maintain the single-family zoning based on the limited fixed services such as water, sewage, hydro, parking etc;

"The fire code be amended to include fire safety regulations for accessory apartments; and

"All Ontario municipalities should adopt a uniform smoke detection bylaw."

The reason the registry has to be part of it is that we have had four deaths in Mississauga and we have had a requirement in Mississauga for smoke detection equipment, smoke alarms.

Your point is that you want Bill 120 as it is, without Mr Cordiano's amendments and without my amendments. You want it to go through, because you want to make these basement apartments legal because you want to make them safe. I'm saying to you that it won't work without the registry so that the municipality, ie, the fire department, knows where they are and they're inspected. They can't be inspected if the owner declines the entry.

That other issue of right of entry I will get into at another time in terms of the right of entry without a search warrant. In Mississauga, as I say, we've had these four tragic deaths and we already have a law that requires smoke alarms. My fire chief and his firefighters cannot knock on a door of a residence in Mississauga and say, "I want to see if you've got a smoke alarm." That's a requirement for every residential unit of any size in any kind of dwelling in Mississauga, but if that owner says to the firefighter, "I'm sorry, you're not coming in my house," then the fire department has to go and request a search warrant.

As Chief Hare told the inquest, they cannot get a search warrant when obtaining -- and I read again from his evidence to the inquest: "When obtaining a search warrant, the informant must have `reasonable and probable grounds to believe that an offence has taken place.' Unless you have been in the building you will have no grounds to claim that there is a violation of any regulation. It has been our experience that a justice of the peace will not grant a search warrant without substantial evidence. In 1993 in Mississauga we were denied a search warrant even though we had an affidavit from a person who had been in a residential premises that we wanted to inspect. The Fire Marshals Act presently provides the fire service with rights of entry; however, they are difficult to use in single-family dwellings. The fire department can charge the property owner with obstruction under the act, but the time and expense required to carry out the prosecution will be an added load for municipalities."

Now you have brought to our attention that section in the bill, subsection 38(3), where it says, "No person shall obstruct or attempt to obstruct an officer or a person acting under the officer's instructions in the exercise of a power under this section." But the thing is, if they do, if they choose to do it, you have to go the legal route through the courts to get that entry.

On the one hand, you want all these things to ensure that basement apartments exist and to ensure that those tenants are protected and are safe and you want all these inspections done, but you're not willing to accept that they should be registered. The registry part is such a little part of the whole bureaucracy that it's going to cost to implement Bill 120 anyway.


I just don't understand. You don't care about the municipalities in the first place, because AMO is totally opposed to this bill and you've ignored AMO, and now suddenly you're saying: "Oh, well, we don't want another bureaucracy. It's going to take too much for the municipalities to administer it." You can't say both those things. You can't say on the one hand, "We don't want to extend the bureaucracy," and then on the other hand say to all the municipalities, "But thou shalt do this, this and this."

Why are you suddenly so worried about the registry? They're not suggesting they register with the province; they're suggesting they register with the municipality. The motion on the floor is very clear. It says, "No person shall rent out an accessory apartment unless the apartment is registered with the municipality in which the apartment is situated." It isn't even anything to do with you; it's to do with the municipality.

Mr Cordiano: They're the ones that want it.

Mrs Marland: Through AMO, they are the ones who want it, but more importantly, it's the fire chiefs who want it. It's the fire chiefs who go with their staff into those basement apartments. In my case in Mississauga, the terrible irony is that in both those fatalities, with the two mothers and the two children, the same fire crew went to both those fires. Imagine the trauma for them, to have lost one mother and child and then the same fire crew goes back within two months to another basement fire and here's another mother and child. And these firefighters are powerless to get in there. If somebody phoned and said, "We think there are x apartments on this street," they have no power to go in and inspect whether they're there and what condition they're in.

You can set up all the requirements you want under Bill 120. It's going to amount to a hill of beans without the inspection and without the registry, and that's why this motion is so critical to this bill.

Hon Ms Gigantes: Ms Marland indicated she'd be interested in hearing comments by Mr Douglas from the ministry point of view on some of the points she had raised.

Mr Douglas: First of all, I would like to clarify why the government did not proceed with implementing the fire code amendments at this time and decided to wait until Bill 120 was approved. The Ministry of the Solicitor General and corrections were concerned that having the fire code standards in place and well publicized would give the occupants of illegal units the impression that meeting these standards was possible. However, that was not the case.

If somebody in an illegal unit chose to request a fire inspection, the fire inspector would come, and the fire inspector could very well issue an order. The municipality would be obliged to issue a building permit based upon that order. However, the existence of the unit as an illegal unit would become known to the municipality, and the municipality, subsequent to the completion of the construction work, could come in and charge the owner for having an illegal second unit.

Hon Ms Gigantes: Illegal because of zoning.

Mr Douglas: Exactly. The danger was that people would be under the misconception that meeting the fire code standards would be sufficient to have a legal unit.

Mrs Marland: Excuse me, Mr Douglas. You didn't answer my question. How would you feel, if all those eventualities took place and there was a fire in a legal apartment in the city of Toronto? Why wouldn't you have amended the fire regs as they apply to the existing legal ones? What's the argument against that?

Mr Douglas: In municipalities that permit second units, a greater proportion of the units were installed with a building permit. Those units are far more likely to meet fire standards from day one. They would have the necessary exiting, smoke alarms, separation, that sort of thing. As well, in the absence of provincial standards that specify fire requirements for two-unit houses, many municipalities, including Mississauga, have implemented property standards provisions that deal with those.

So in many cases standards are already in place. They have proven not to be effective, because the tenants are aware that the units are illegal and that a request to have the unit inspected could very well lead to their eviction.

Where no standards are in place, fire marshals, who are deputized in each municipality with a sophisticated fire department, are authorized to issue orders on kind of an ad hoc basis based upon the existing guidelines. When a property that is legal is inspected, there are grounds to issue an order.

What the new fire code standards will do is impose a uniform --

Mrs Marland: I wonder if some of the conversations could be outside.

The Chair: I agree, Mrs Marland.

Mrs Marland: Are you saying that the legal apartments in the city of Toronto all meet the fire code requirements?

Mr Douglas: We certainly cannot say that. However, it is more likely that they would, especially those that were installed legally with a building permit.

Mrs Marland: You're not saying that, so you're saying there are legal apartments in Toronto that may be at risk, because you can't say they're safe.

Mr Douglas: That is correct.

Mrs Marland: So why wouldn't you have brought the new fire code regulation changes for "basement apartments," which is the draft we now have complete? Why wouldn't you have at least implemented those changes where existing legal apartments are?

Mr Douglas: Because the Ministry of the Solicitor General and Correctional Services did not want to create this impression across the province, in municipalities where units are illegal, that meeting the fire code standards was sufficient. As I was about to note --

Mrs Marland: But couldn't you have said to the city of Toronto, "These are the new fire code regulations for your basement apartments?" You would be on pretty shaky ground if there had been a tragedy in a legal apartment and you're sitting with brand-new regulation changes that could have been implemented a year ago.

Mr Douglas: Currently, there are guidelines which can be applied by fire marshals when the unit is inspected.

Mrs Marland: Are the guidelines as strict as these?

Mr Douglas: The guidelines follow very closely what is in the fire code standards. The only difference --

Mrs Marland: No, in these new ones. Are the fire codes as strict as the new ones you're proposing?

Mr Douglas: Currently, the fire code does not have any standards whatsoever for two-unit houses. There are current guidelines which can be applied on an ad hoc basis by fire marshals. The new fire code standards will have a uniform set of standards across the province, no room for discretion at the local level. Furthermore, they would apply to properties which are not subject to inspection. Basically, meeting the new fire code standards will be a legal obligation. That is the main difference between guidelines and fire code standards.

Mrs Marland: How much better is it going to be for the legal apartments that exist today in the city of Toronto that may be at risk, where the fire marshal has had a set of guidelines and there has been no inspection? Without a registry, neither the fire department nor the city of Toronto knows that those apartments exist.

Mr Douglas: If the units are legal for zoning purposes, the tenants are in a far better position to complain to the fire department about substandard conditions, for example, a smoke alarm that does not work, an exit that is effectively blocked. That option's not available if units are illegal for zoning purposes.

Mrs Marland: You're saying there is a set of guidelines for legal apartments in the city of Toronto and you're saying the fire department has a right to inspect for those. What I'm challenging you on is that first of all, you can't tell me where they exist -- "you" through the municipality, not you personally, obviously. Without a registry, the city of Toronto that has had, to use your words, the right to inspect and has had a standard of guidelines -- not mandatory, by the way. A guideline isn't mandatory.


Mr Douglas: In addition to the guidelines, the city of Toronto would have its own property standards provisions, related to matters such as smoke detectors, which would be mandatory.

Mrs Marland: Does the city of Toronto mandate smoke alarms now?

Mr Douglas: I would not want to say with any certainty, but I believe that is the case.

Mr Grandmaître: Most municipalities.

Mrs Marland: No, not most. Mississauga was one of the first.

Hon Ms Gigantes: Margaret, there are two other pieces of information that might be useful to you.

Mr Douglas: Second, I would like to clarify that in situations where a second unit is added to a house without construction, it is still necessary to obtain a permit under the Building Code Act. The recent changes to the building code included part X to the building code, which requires the issuance of a change-of-use permit, even where no construction occurs, where there is an increase in hazard. An increase in hazard does occur, for example, when you have a second unit with another kitchen.

Mrs Marland: So if I have an existing basement apartment and it has been occupied as a basement apartment, it's not a change of use, right?

Mr Douglas: If it has been previously occupied as a basement apartment, it is not a change of use. But if it is a house with a basement that was previously used as a family room with a wet bar and a bathroom, no construction is required, except perhaps to install a separating door. If that unit is converted into a unit for the use of a separate household, it would be a change of use, and a change-of-use permit would be required.

Mrs Marland: Tell me then, if you've now got to get a change-of-use permit in the example you've just given, or if you're building something you've got to get a building permit, where is the difference between those requirements and the simple requirement of Mr Cordiano's motion and my motion that you register it at the same time?

When you go for a building permit, you have to practically sign your life away. I agree, by the way, with building permits; I'm not criticizing it. But the point is, if a municipality is going to issue -- I guess you don't want to listen, but I'll say it -- a building permit to an individual, the municipality already has a requirement to have a lot of information on the owner of that property. How much more work is it to say there will be a registry of those properties? You've already covered two. You've covered a change of use and new construction, so how far apart are you from having a registry? The information is already there with the municipality.

I ask you, Madam Minister, what is the hangup about the registry?

Hon Ms Gigantes: Mr Douglas has an explanation of the difference if you'd care to hear it.

Mrs Marland: Yes, I would care to hear it. That's why I'm asking the question.

Mr Douglas: The main difference is that registration would involve the mandatory inspection of all existing units, even where there is no complaint.

Mrs Marland: Now, wouldn't that be a good thing. You know why? You've just given us the perfect hook we're looking for. Where there is no complaint or no request for an inspection, because maybe that tenant doesn't know about Bill 120 once it's passed, or maybe that tenant doesn't have a facility with language and doesn't know his rights, they won't be asking for an inspection.

Your argument against a registry is that it would require an inspection. I think that's wonderful. If you really believe in what you're saying, why wouldn't you want that inspection? You've just given us the perfect hook. I can't believe it, but it's wonderful.

I thank you for your answer, because the very thing you -- you the ministry, you the minister, you the government -- want to accomplish with Bill 120 is that you want to protect tenants, and you don't only want to protect tenants in basement apartments who know their rights, who know about Bill 120, who can read and speak English. You want to protect everybody else, I would think. If you really want to protect everybody in a basement apartment, why in heaven's name would you not want a requirement of an inspection, which is what is --

Hon Ms Gigantes: I can answer that.

Mrs Marland: Your staff said the argument against the registry is that it would require an inspection.

Hon Ms Gigantes: That's right. That means that everything stays illegal until, at somebody's leisure, there's an inspection. We want to see the situation end, Ms Marland, where all are illegal because of zoning --

Mr Owens: Come out to Scarborough, Margaret, and I'll show you some of these units.

Mrs Marland: Just a minute. I want to listen to the minister.

Hon Ms Gigantes: You would continue the state of illegality until the apartment happened to get inspected by someone. What we're saying is that it's very reasonable that we proceed first of all by removing the unnecessary illegality that's created by zoning. You would substitute for that an illegality because it's not now registered, because you can't get registered until you've got an inspection. Everything stays illegal, under your proposal, until an inspection occurs. That doesn't make sense.

We don't want to continue the illegal state. What we want to do is put these apartments in a situation where they are legal; where, if there are problems, they get reported, they get dealt with; where we're encouraging people by providing a framework in which it is permitted and legal to have an apartment in the house, even if it hasn't already been inspected, to continue having an apartment in the house, even if somebody hasn't got around to inspecting it yet.

What you would do is suggest that over 100,000 units continue in a state of illegality until somebody inspects them, and that defeats the whole purpose of getting this out of the underground market.


Mrs Marland: I'll only be a minute, Joe. I just want to get this very clear. Madam Minister, what you're saying is that you want to do X, Y and Z, legalize basement apartments, which I don't agree with, but I'm looking at it from your perspective. You want to do that. On the one hand, that's what you want to achieve. You want to say, "Okay, they're all legal," but you don't even want to know if they're safe, and you certainly don't want to register them, apparently, because that would mean an inspection. Do you agree with your staff person's answer, that the reason --

Hon Ms Gigantes: It would be wonderful.

Mrs Marland: Just a second. Your staff person said --

Hon Ms Gigantes: It would be wonderful if they were all inspected and we knew that each and every one were safe. But we are not willing to contemplate their continuing illegality until they get registered, which means they have to be inspected first. That doesn't make sense. That defeats the purpose of getting them out of the underground economy.


Mr Cordiano: If I may --

The Chair: Order. The next person on my list is Mr Johnson, who, through the wonders of electronic technology, I know is not here. The next one on the list is Mr Cordiano, then Grandmaître, then Mills.

Mr Cordiano: Let's deal with that very point, Minister, the point having been made that the unit would continue to remain illegal until an inspection was conducted. If that is the only concern you have, if you read the section on inspection, it says a municipality may inspect an accessory apartment as a precondition to registration. It does not order the municipality or does not require or obligate the municipality to do so. It says "may." It gives the municipality an option.

If that is troublesome, the real intent here is to have these units inspected at some point. I'm not objecting to having those units inspected after they're registered.

Hon Ms Gigantes: Then you'd better say that.

Mr Cordiano: They're registered, they're still legal, according to your bill as it would be passed, and then following the registration, an inspection should be conducted within a period that's reasonable. That's what I'm trying to get at.

Hon Ms Gigantes: Well, you're not getting at it.

Mr Cordiano: Well, let's change it. If that's all that concerns you, let's change it.


Hon Ms Gigantes: Your amendment gives the municipality, if it seeks to proceed in this way, the power to refuse registration before an inspection.

Mr Cordiano: That's not the intent I had. I was giving the municipality flexibility, because it was contemplated that by way of regulation you would allow for --

Hon Ms Gigantes: Then let's go to the registry.

Mr Cordiano: The point of a registry is very much a part of what we're doing, very much critical to this, because we are attempting to identify where each and every unit is. You have expressed concern around tenants being able to feel as though they wouldn't be thrown out of their apartments, because they would check to see if this unit was registered with the municipality.

By registering the unit, it does two things: It identifies the unit and where it's located and it then enables either a tenant or the municipality, on its own initiative, to conduct an inspection. It's absolutely critical that we do those inspections to ensure that these units are safe. How in the world can we do that if an inspection is not conducted? You're telling me you're going to trust landlords in this case, in this particular sector. Are you listening over there?

Mr Mills: You bet.


Mr Cordiano: No, it's not spinning it out. It's a critical point.

Mr Mammoliti: Mr Chairman, on a point of order: I think it's the heat that's getting to everybody.

Mr Mills: Not to me. I'm cool.

The Chair: I appreciate that view.

Mr Cordiano: A taste of summer.

The minister is saying, and let's make this very clear, that she in this case, in this instance, is trusting of landlords, that they will come forward. I'm saying the roles have reversed here. There's no incentive for those landlords who have illegal units, but if the unit is registered, a tenant would be able then to make submission to a municipality for the inspection to proceed and ensure that was going to be done. If the unit isn't registered, what in the world is going to compel a municipality to make that inspection? That will be delayed because there is no fee to be recouped by the municipality. There is no way in the world that you will get an inspection.

In your bill, you require a warrant to search that unit, a further barrier, a further hurdle to making sure that the units are safe. I can't follow the logic, Minister, I just can't. I've tried to follow it, honestly, but I just don't think what you've proposed is logical. I think it's totally inadequate. What you're suggesting is that you're going to rely on the good faith that exists out there for these units to be dealt with by landlords, that they will magically come forward and seek to have these units brought up to standard.

On the other hand you're expecting that tenants, on their own wisdom, with their own limited information that's been provided to them, will be knowledgeable on the building code, the draft amendments. I would offer this, Minister, that most members of the Legislature are not familiar with those draft amendments, if you were to take a poll. How in the world then can you expect tenants out there to be familiar with what is up to standard and what is not? That's what you're saying, and I'm saying that's not good enough.

Mr Grandmaître: I think the minister is very, very concerned about existing apartments and illegal apartments zoned illegal. Can I give you an example of an existing accessory apartment with good zoning, with the proper zoning? Has your ministry identified how many illegal apartments exist in the province of Ontario or let's say the city of Toronto with the proper zoning?


Mr Grandmaître: Thank you. I didn't think you had an answer.

What I'm saying is that every municipality that operates under the Municipal Act or the Planning Act has a committee of adjustment. If you're concerned that by having these apartments registered, they will be fined tomorrow morning, then under the Planning Act and also under the committee of adjustment, these landlords can appear before the committee of adjustment and be given 60 days, 90 days, 120 days, six months to upgrade their apartments, to make them legal.

Hon Ms Gigantes: Ten thousand in the city of Mississauga appear before the committee of adjustment? Ten thousand.

Mr Grandmaître: You don't know. You said you didn't have a number. Now you're using 10,000.

Hon Ms Gigantes: No, these are illegal apartments because of zoning. If you put in the registry system, what you're saying is that they can go to the committee of adjustment. There are going to be 10,000 of them that have to go before the committee of adjustment.

Mr Grandmaître: No, I'm not saying that and I'm not in agreement with you that there are 10,000. Maybe there's 15,000 or maybe there's 20,000.

Hon Ms Gigantes: Yes. Where's the lineup for committee of adjustment in the city of Mississauga under your proposal?

Mr Grandmaître: You're saying we're not going to accomplish anything with the committee of adjustment, and I don't think that by making these apartments legal tomorrow morning you're going to resolve your problem. You're going against the Municipal Act, you're going against the committee of adjustment, just because you've got something in the back of your mind, "Hey, let's take over zoning." Forget about zoning.

Hon Ms Gigantes: On one matter only; nothing else on zoning is changed. Nothing else is changed in Bill 120 about zoning powers in the municipality, except the municipality's right to say to a property owner, "You can't have one apartment in your house." That's it; that's all.

Mr David Johnson: That's rather significant.

Mr Grandmaître: That's very significant, because you're eliminating single dwellings.

Hon Ms Gigantes: That does not mean taking over zoning.

Mr Grandmaître: You're eliminating single-dwelling zoning; that's what you're doing.

I'm sorry, but I don't think we're going to win this round. I didn't expect to win this round. But I think, Madam Minister, you have the wrong conception or a misconception of zoning bylaws and what municipalities can do and what the fire marshal and municipal building inspectors can do. I don't think you've done your homework, because these people right now are asking you, are asking the government of Ontario, to give them more powers so that they can have access to these apartments and identify the illegal ones and make them legal. I don't think you're accomplishing this with Bill 120.

Mr Mills: I'm almost reluctant to say anything, because I don't want to prolong the agony any more and expect more rebuttals, but I think I would be remiss if I didn't talk to something that was said about 55 minutes back by the honourable member opposite me in so far as the fire chiefs are concerned. She suggested that her fire chief in Mississauga was speaking on behalf of all the fire chiefs, for all the members all across Ontario, and I beg to differ with that.

I just want to remind members that unless my memory has failed me somewhat since we heard the people appear before the committee, the acting fire marshal of Ontario appeared before us committee members, and that acting fire marshal, speaking for the province of Ontario and, I imagine, the upper tier of fire chiefs --

Mrs Marland: On a point of order, Mr Chairman: It needs to be said to Mr Mills that --

The Chair: Under what standing order?

Mrs Marland: It's under the standing order of --

Mr Mammoliti: Just say a number, Margaret.

Mrs Marland: -- 47(d).

Mr Mills: Who's he?

Mrs Marland: When I said that Chief Cyril Hare was speaking on behalf of --

The Chair: I think we have a point of view, here.

Mrs Marland: He was giving sworn evidence --

The Chair: There is no 47(d), Mrs Marland.

Mrs Marland: -- at the coroner's inquest and he said that he represented the Ontario Association of Fire Chiefs.


The Chair: Mr Mills has the floor.

Mr Mills: Thank you very much, Mr Chair; I will continue if I can. Notwithstanding what you've read, you made an aside after you read, "I hope you folks realize that this man was speaking on behalf" -- I've made a note of it -- "of all the fire chiefs in Ontario and all the fire chiefs there." I'm coming back with the retort that I was at that committee and, as I say, my memory may have failed me, but I'm not sure it did, the fire chief, the acting fire marshal of the province of Ontario --

Mrs Marland: He's not a fire chief; he's a fire marshal.

Mr Mills: This is the upper tier of management of the fire brigades all over Ontario. Let's face it, he is the big cheese of firefighting. He's the acting fire marshal of Ontario and he appeared before this committee and said, in effect, that everything we've done in this bill in so far as fire protection is concerned, the acting fire marshal of the province supports it.

He went further than that. I don't like to raise this, but it's getting rather sad to me that every time there's a fire in a basement, somehow we blame Bill 120 for it. That acting fire marshal of Ontario said there's absolutely no statistical evidence anywhere to suggest that there were more fires in basements, that there was more danger in basement fires: nothing. He never said that. He said there was no evidence of that anywhere in the province of Ontario. This is the spokesperson, I say, for the whole of the province of Ontario in so far as firefighting techniques, direction -- they direct.

Mrs Marland: He's a bureaucrat, for crying out loud.

Mr Mills: They direct the fire brigades of every city in this province. Don't you get this through your head that they set --

Mrs Marland: You've got the same lines as your minister.

Mr Mills: Of course, they set the policy. They say what the fire brigade will do, how they will act, what the training is and he said he has no difficulty with this.

Mrs Marland: I don't say to you, "Don't you get that through your head?"

Mr Mills: I want to go on again a bit. There's all this talk about, "You can't get in, you can't get in." I remember that acting fire marshal telling the committee -- I don't know if you were there; you were on and off -- that the Fire Marshals Act has the provision for these basement apartments to be looked at, checked etc.

Mr Cordiano: Now, currently.

Mr Mills: Currently. He said the only difficulty with it is that some fire chiefs and some fire people have some -- what was the word he used? I'm trying to think.

Mr Cordiano: That's my point.

Mr Mills: He said they have some sort of discomfort level in using the powers they've got, but to say they haven't got the powers there now to do all the sort of things you say they can't do, they have under the act.

Maybe it's a good point -- no, I better not. We haven't got our members here. I was going to suggest something. I'm fed up with this.

Hon Ms Gigantes: We've got enough members, Gord.

Mr Mills: Have we? Can I suggest that the question be put.

Mrs Marland: It won't work.

The Chair: I'm not certain you want to do that, Mr Mills.

Mr Mills: I'm fed up.


The Chair: I didn't hear that, Mr Mills.

Mr Mills: Okay. That's my nature, to move it along.

Mr Cordiano: There's nowhere to go, Gord.

Mr David Johnson: I unfortunately missed a chunk of this this afternoon, but --

Mr Owens: We saw you on TV.

Mr David Johnson: Yes, that was one benefit, I suppose. Just to comment on the last few statements by the member opposite, Mr Mills, it's fine to make a certain interpretation of what the fire marshal has said; it's fine to look in the Fire Marshals Act, which I have in my hand right now, and find a certain section that apparently gives fire departments authority to go in; it's fine to do that without looking at the whole act; and it's fine to do that without talking to the fire chiefs. I wonder if the members opposite have actually talked to their fire chiefs and said: "How do you feel about this? What authority do you think you have?" I have. Maybe that's not too surprising, because I've worked --


Mr David Johnson: I've talked to the fire chief from the borough of East York and he says --


Mrs Marland: No, he said your fire chiefs.

Mr David Johnson: He said the fire chief. It's not the fire marshal who's going to go in and inspect these basement apartments, it's the fire chief and the staff within each municipality who are going to go in and do it if it's going to be done, although I've heard earlier that there's concern that there's too much to do and maybe we shouldn't do it, or something. I don't know what I missed exactly.

I've talked to the fire chief in the borough of East York and it's certainly his impression that the fire marshal's authority here -- if you look at the act, the authority that's passed from the fire marshal to the fire chiefs comes under the category of an assistant to the fire marshal. So various people within local fire departments are construed to be assistants to the fire marshal. But it's the understanding of the fire chief that there has to be some serious health or safety problem before they can go on.

I've asked him: "That's your interpretation, and you've talked to other fire chiefs. Is that their interpretation, from your experience?" Obviously, he hasn't talked to everybody, he doesn't know everybody, but he says, in his experience, yes, that's the way it's interpreted. They feel there has to be something serious that they're aware of, that's visible, before they can go in. They can't just go in and inspect. They do not have that authority, in their view.

Now, the minister may think they have that authority. The fire marshal apparently has conveyed to the member that --

Mr Mills: To the committee.

Mr David Johnson: Well, everybody has a different interpretation of what the fire marshal says, but the fire chief, at least one fire chief, the fire chief in the borough of East York, is saying that the fire marshal is conveying to him, as the fire chief for the borough of East York, that he does not have the authority to go in unless there is a serious health or safety problem that they're aware of. So it's a catch-22: How do you know there's a serious problem unless you get in to see it?

Mr Gary Wilson: Unless the tenant comes to you.

Mr David Johnson: Or unless the tenant comes, yes.

Mr Gary Wilson: They won't come because they're illegal. That's the whole point.

Mr David Johnson: Well, that's a point my colleague to my right, Mr Cordiano, has commented on.

The Chair: Order, Mr Wilson.

Mr David Johnson: The government's view is that all tenants, in all circumstances, 100%, will come forward and will say: "There's a serious problem here. There may be a serious problem. Come on in and inspect." They don't have to say it's a serious problem; they only have to come forward and give permission. Then, of course, the zoning inspector can go in, the property standards inspector can go in, the building inspector can go in, the health staff can go in, the fire department can go in. All these people can go in if they're invited, but none of these people can go in if they're not invited.

Mr Gary Wilson: That's not true.

Mr David Johnson: Only if there is, in their view, a serious health or safety problem that they're aware of: catch-22. The question is, how many people will invite the fire department in, will invite the property standards people in, if this is made legal? It's the government's view that they'll all invite them in. I think that's pie in the sky. From my experience --

The Chair: Through the Chair, Mr Johnson.

Mr David Johnson: Mr Chairman, I would encourage the government members, before they come to that conclusion, to talk, maybe sit down with some of their local councillors, sit down with some of their property standards people, sit down with some of their fire department people in their municipalities and find out their experiences. My experience has certainly been that access is denied not only by the owner of the property but by the tenant.

I know that in East York we've had instances where a person in the neighbourhood will complain about a certain building, and when the inspector comes to the door and says they'd like to come in and inspect and find out what's going on, they're not allowed in. I think that'll be true. A large number of people either will not request an inspection or will not permit, even after this bill, the inspector to go in. So that seems to be the basic difference.

I was going to ask the minister a question. There was a question in the House that I think was posed by Mrs Marland actually, and the minister responded -- I have Hansard here in front of me. I direct this question to the minister.

The minister said, "The situation under Bill 120 is that all new apartments in houses will only be legal if they have a building permit and are thus certified by the building inspection branch that they meet the safety code, the Fire Marshals Act and the building code."

I just wondered if the minister would expand upon that. I'm not quite 100% sure of what she meant by that.

Hon Ms Gigantes: What worries you?

Mr David Johnson: I may have missed it here, but is it contained in the bill that all new apartments must be inspected?

Hon Ms Gigantes: Any new apartment requires a building permit.

Mr David Johnson: How is it that you say that? I mean, we have 100,000 across Ontario.

Hon Ms Gigantes: To be legal, a new apartment in a house will require a building permit. You missed an explanation by Mr Douglas earlier about the requirement within Bill 120. We can repeat it if you like.

Mr David Johnson: Perhaps you could quickly draw my attention to the clause here.

Mr Douglas: This is related to creating new apartments in houses, new construction. If a unit is added to a --

Mr David Johnson: It says all new apartments in houses; it doesn't say "new house." It says a new apartment.

Hon Ms Gigantes: That's right. That's what we're talking about.

Mr David Johnson: A new apartment, yes, okay.

Mr Douglas: Second units added to brand-new houses are covered by part 9 of the building code. Second units added to existing houses where construction is required is covered by part 11 of the building code. A new part of the building code, which is part 10, provides for the issuance of a change-of-use permit where a second unit is added to an existing house where no construction is required.


Mr David Johnson: So this is a change to the building code.

Mr Douglas: This is existing provisions of the building code.

Hon Ms Gigantes: They were changed in July 1993.

Mr David Johnson: So they were changed in which --

Hon Ms Gigantes: In July 1993 they were proclaimed.

Mr David Johnson: They were changed in July 1993, and those changes of July 1993 for a new unit in an existing house -- say what?

Mr Douglas: If a new unit is added to an existing house and renovation work is required, part 11 of the building code was amended to set specific standards which deal with that situation.

Mr David Johnson: Okay, now can I ask how you would know if a new unit is added to a house?

Mr Douglas: The most common approach is when somebody comes forward and applies for a building permit. If they do not and the building official has reason to believe construction has occurred, the building official can apply for a search warrant and the person can be charged or be issued an order to comply.

Mr David Johnson: Let's deal with them one at a time. Of course, the experience in the past has been that many, many, probably the majority of these apartments are put in without a building permit. Why have you reason to believe that somebody would now come forward and ask for a building permit based on the fact that literally thousands have gone in without building permits?

Hon Ms Gigantes: The same way they'd come forward to register.

Mr Cordiano: At least you admit that much.

Hon Ms Gigantes: Well, no, that's what we've been discussing all along.

Mr David Johnson: I assume that's a snarky comment, but at any rate, if I can direct my request to the staff --

Mr Douglas: If a second unit in houses is illegal for zoning purposes, if you come forward and ask for a building permit, that building permit will be denied. Basically, if people wished to install a second unit, they were obliged to do so illegally. It's possible that some, of course not all of those people, would have chosen to install the unit with a building permit if they had had that option.

Mr David Johnson: You said that if the building department thinks this is going on -- building permits costs money and I suggest to you that many people will not come forward because of that and the fear they may be turned down, or heaven knows what, but you said that the building department could get a search warrant.

Mr Douglas: That's correct.

Mr David Johnson: What would they have to prove? I don't know how to phrase this. What conditions do they have to meet to get the search warrant?

Mr Douglas: The offence would be construction without a building permit, so they would have to show reasonable grounds that such construction is going on and that investigating the property will help provide evidence in a conviction.

Mr David Johnson: What would they have to do to show reasonable grounds?

Mr Douglas: That is certainly not my area of expertise, but they would have to go before a provincial court judge or a justice of the peace. Perhaps some of our legal people can help here.

Hon Ms Gigantes: We do have legal assistance. Mr Lyle could help us here.

Mr David Johnson: We're sort of going around the room here. Where did we end up?

Mr Tom Melville: It's Tom Melville, Municipal Affairs legal counsel, and I was wondering, could you repeat your --

Mr David Johnson: The statement was made that if a new apartment goes in a house and if they don't come forward and ask for a building permit, but the building department has some suspicion that an apartment is going in without a building permit, then it can get a search warrant to go in and look and see if an apartment is going in without a permit. But it's been established in front of the authority that they would need to show reasonable grounds before they would get the search warrant. My question is, what would they have to do to show reasonable grounds? What evidence would they have to have?

Mr Melville: Can I backtrack a little bit from the question, because it may be helpful? There are two possible regimes that might apply. The first would be the building code, and that's in the case of new construction. If there were no new construction, and that could also be the case, then there would be the property standards bylaw of the municipality. This bill deals with the latter part of it for the property standards, and provides an additional power, the power of entry, in terms of a warrant, as has been discussed earlier today.

Mr David Johnson: Can I just clarify that? You're saying that if an apartment is put in, then it might not necessarily need a building permit. Is that what you said?

Mr Melville: That's certainly conceivable.

Mr David Johnson: Yes, that's conceivable. In that case it would be a property standards matter.

Mr Melville: Yes.

Mr David Johnson: Okay. Let's deal with that then. The municipality wouldn't know that until it got in to see. Somebody would have to get in to see, because how would you know, unless you got in to see, if it needed a permit or not and if everything was being done right or not?

Mr Melville: It's certainly conceivable that they might not know, although it's also possible --

Mr David Johnson: I don't know how they would know unless --

Mr Melville: It's also possible that they would know because a neighbour or a tenant came forward and gave them the information, if not the owner. There are going to be circumstances --

Mr David Johnson: I don't know what municipality would accept that sort of third-person hearsay, but that would be an interesting procedure. You've indicated that the property standards people may actually be the authority that should get in and inspect. Then I presume the property standards people would have to get the same search warrant --

Mr Melville: That's correct.

Mr David Johnson: -- and they would have to show the same reasonable grounds.

Mr Melville: Reasonable grounds.

Mr David Johnson: What are those reasonable grounds that either the property standards people or the building inspectors would have to show to get in to make sure that everything was done properly and the safety was all looked after?

Mr Melville: Again I'll backtrack a bit, but there's a reason. Under the property standards regime there are two steps. The first step is the obtaining of a property standards order. That can be obtained when the city becomes aware that there's a property standards matter at issue.

Mr David Johnson: Can I just back up in there too, since you've introduced that? For the city to issue an order, it has to be aware that there is a violation. Am I right?

Mr Melville: No. Well, for them to issue an order, they first have to go through the procedure prescribed in the act, which would involve an inspection.

Mr David Johnson: Then that brings back the same question: To have an inspection, even to the stage of issuing an order, they have to get in. If they're denied entry, if they have to get a search warrant, then they still have to show reasonable grounds, presumably, don't they? I'm just trying to think from my previous experience. I don't think you can issue an order to comply without having gotten in, inspected and found the violation; otherwise you're just speculating on what the violation may or may not be.

Mr Melville: That's correct and that's why I was backtracking. Once a property standards order is made and then if there is a suspected offence, then you can obtain a warrant if you have reasonable and probable grounds to get in.

Mr David Johnson: The question is, what do you have to do to establish reasonable and probable grounds? It would be before, what is it, a justice?

Mr Melville: Yes.

Mr David Johnson: If you were the property standards or building inspector for the municipality and you appeared before the justice and said, "I need a search warrant," the justice would say, "How have you established reasonable grounds?" What do you think you would have to demonstrate to the justice so that he would give you that search warrant?

Mr Melville: I'm not sure I could answer that in the concrete. In the abstract, it's simply reasonably relevant grounds that are relevant to the commission of an offence so as to convince the justice or judge that the standards for the issuance of a warrant have been met.


Mr David Johnson: This may not be your jurisdiction, but have you discussed this with any municipalities to establish their experience and what they've had to do to show reasonable grounds? I know that in my former municipality, in talking to our property standards people, they have been rejected on numerous occasions from getting a search warrant because they have not been able to establish the criteria that are in place today, and they're turned down. I just wondered if you had discussed this with municipalities to see what's really going on out there. It's nice to assume these things automatically happen. The problem is that in the real world, they don't. Municipalities do get turned down.

Hon Ms Gigantes: Previously, though, you will recognize that when your officials were requesting permission to enter to carry out an inspection, they would have been required to say what they were going to seize as evidence in their search. Under Bill 120, that requirement is no longer there.

If I could speculate where our legal assistant does not wish to, for example, I can imagine a situation where when you're talking about a serious violation which would cause, for example, a fire official to seek a search warrant for power of entry from a justice of the peace, that official may have been approached by a neighbour who says, "I believe there's somebody living in the basement. I can tell by the lights." The official goes and looks at the windows, if it's a basement apartment, and decides that those don't look like they're meeting the fire code and goes before the justice of the peace and says, "I think I have reasonable and probable grounds."

Mrs Marland: But they don't accept that.

Mr David Johnson: They don't, that's the problem.

Mrs Marland: That's the problem, Evelyn.

Mr David Johnson: You should talk to some of the municipalities because it just doesn't work.

Mrs Marland: Just talk to some of the JPs. It doesn't work. They don't accept that.

Mr Douglas: If I could add something, the most serious violations of a property standards nature are those that present a risk of fire and those would be covered by the Fire Marshals Act. Under the Fire Marshals Act, section 18, a fire marshal who has grounds to believe there is a threat of fire, which is a danger to life, can enter the property without a search warrant. So there would be no need to show reasonable grounds before a justice of the peace.

Mr David Johnson: That's where I started out this whole business. I have it right here, and that's the clause I'm sure you quoted in the House, but the problem is that when you talk to the fire chiefs, they don't have that kind of evidence. Again, they think there has to be a serious health or safety aspect and that would not be the case in 95% of the situations.

Hon Ms Gigantes: The threat of a fire may be considered that.

Mr David Johnson: What is the threat of a fire?

Mrs Marland: How do you prove the threat of a fire?

Hon Ms Gigantes: May I also suggest that in the past we may have seen situations in which there would've been some reluctance on the part of a justice of the peace to permit entry to try and enforce something that was a zoning matter, essentially, and because Bill 120 moves away from the question of declaring the unit illegal because it's not zoned appropriately, you're going to see a situation where the focus on safety of the unit becomes the question. That's the intent of our changes.

Mr David Johnson: I don't know. You're speculating there and it's nice to speculate. I do recognize that in terms of evidence, you don't have to seize evidence. I'm well aware of that and that is a minor step.

However, in talking with staff at East York, after I became aware of that some time ago, I asked them if this would make much of a difference and in their view, it wouldn't. They still have to show reasonable and probable grounds, whatever it is, and that's going to be a problem.

No judge or no justice will accept some neighbour who may have peered through a window or something. I can tell you that we tried that; it doesn't work. There have been instances where properties have been advertised in the newspapers as having a basement apartment, as having a second unit, and we've taken that to the justice to say, "Look, right here in the newspaper it says this place has got a second unit," and that's not considered. For whatever reason, they don't accept that.

We had a case in East York where the inspector did get in. The tenant, I guess, let the person in and they went down to the basement to see the conditions. Then somehow it got to court because something wasn't quite right and it got thrown out. I forget the details now, but the judge asked the inspector, did they see the kitchen. The problem here is that you can only have one kitchen in a building under the present setup. The judge asked, did they see the kitchen on the main floor and the inspector said, "No, we just went down to the basement." It was probably a zoning problem, that's probably what it was. They only saw the kitchen in the basement.

So it was thrown out on a technicality that they didn't go to the main floor and see a kitchen, go to the ground floor and see a kitchen. Even though the inspector had been in and seen the situation in the basement, it was still thrown out on that kind of technicality.

Hon Ms Gigantes: There are other anecdotal stories, too, from East York, where a legal clinic on behalf of a tenant asked for an inspection and was told, "No, we don't inspect apartments which are illegal because of the zoning." That was contained in a letter in a Toronto newspaper about three weeks ago.

Mr David Johnson: I don't know. I haven't got that letter in front of me, but all I can say is that for the fire department and for any municipal staff who are inspecting, the authority that's in section 18 of the Fire Marshals Act or any other authority has not worked up to this point.

Fire chiefs I've talked to -- certainly in Ottawa we talked to the fire chief, he wasn't allowed to speak because he couldn't get on the list; our fire chief in East York; I believe Chief Hare from Mississauga -- are saying that they have not been given sufficient authority in this bill.

Hon Ms Gigantes: I think it's fair to say that people who are responsible officials, who feel a very strong duty in their role as responsible officials, would prefer to have a situation where there were practically no inhibitions about their exercise of their powers. That's generally true of human beings. That doesn't mean that we have to accept that's the way life should proceed. There are certain kinds of reasonable limits on authority and on the requirements of the use of authority within society and I think that the balance here is a very reasonable kind of balance. I'm not surprised that fire officials would prefer to be able to just walk in anywhere, any time, any old way, but that doesn't mean we have to accept that suggestion.

The acting fire marshal of Ontario feels that there is adequate strength in the legislation and in the revised code to permit officials to carry out duties in a way that's going to improve the health and safety of apartments in houses.

Mr David Johnson: I guess we're going to differ on this but I think it goes beyond sort of speculating on what people would be comfortable with and aren't comfortable with. It goes to the issue of are we concerned about the safety of people who live in those units or not, and are we going to give the municipal officials the power they need, or are we going to wait --

Hon Ms Gigantes: There's always a balance.

Mr David Johnson: There's some interpretation of what the fire marshal will think is significant. I can tell you that the fire chief in my municipality says that up to this point the fire marshal has said to the fire chiefs that they do not have the authority to get in and make the inspections.

I don't know what the minister has in mind as to how many of these units will be inspected. I'm starting to become suspicious that perhaps, Minister, you don't think too many of them either need to be or will be inspected and yet they will still be safe somehow. It's certainly my belief that with what we have in the Fire Marshals Act and what we have in this bill -- I don't know all the regulations that are coming in -- the fire chiefs will not have the authority to get in to inspect and they will not inspect many, many units and consequently we are not really addressing the safety problems.

Hon Ms Gigantes: We don't intend to take a passive position in terms of the implementation of Bill 120. We intend to be as aggressive as possible within reasonable limits of expenditure to let everybody concerned with the subject of apartments in houses understand what Bill 120 is, what it provides in terms of a framework to ensure safety, everyone, from real estate agents to you name it, who has an interest in this matter.


Mr David Johnson: I just encourage you to talk with some of the municipal officials, not just the fire marshal. I have one last question.

If in an existing building there's a suspicion that a new unit is put in, a new apartment -- maybe I should direct this to the staff -- and if you do get in and the owner -- this is a problem I've encountered in East York because at one point we were looking at -- as a matter of fact, the regulation in East York now is that apartments that are put in before such and such a date are legal, and after such and such a date generally are not. We've come up to the situation that if you go into a building and there's a question of whether it's legal or not, sometimes the owners would say, "Oh, well, the apartment was put in before that date," so therefore it's legal; legal non-conforming, I guess, is the proper term. Then it's difficult to prove when the apartment actually went in.

I'm just wondering, under what we have here today, if there was some suspicion that a new apartment was put into an existing house, a house that had been there for decades, how would you know when that apartment was put in? How would you know if it was put in before the passage of Bill 120 or after the passage of Bill 120?

Hon Ms Gigantes: It doesn't matter.

Mr David Johnson: Well, just by your statement, you say that all new apartments will only be legal.

Hon Ms Gigantes: All existing apartments will only be legal if they meet the standards.

Mr Douglas: If a second unit was added to a house built after July 1993 and it was built as a single-unit house, it would be caught by the change of use because, by definition, the second unit was added after the change of use cutoff date.

Mr David Johnson: Could I just backtrack? When was the house built?

Mr Douglas: If the house was built after July 1993, when the change-of-use provisions in the building code clicked in, the second unit would automatically be caught.

Mr David Johnson: Yes.

Mr Douglas: If it was built beforehand, you are correct, it would be hard to identify when the second unit was installed. However, if it was an existing unit, provisions of municipal property standards bylaws and of the fire code would apply. So units would have to comply with those standards and, therefore, be upgraded to meet those standards rather than being dealt with under the building code.

Mr David Johnson: All right, because this is a problem that's going to arise; there's no question about it. You're going to have existing structures and you're going to go in and be suspicious that an apartment was created very recently, but you're not going to be able to prove that.

Mr Douglas: The provisions of the fire code, or the new fire code standards related to fire exiting, smoke detectors and fire separation are very similar to those which are in part 11 of the building code, so even though you cannot establish when the unit was created, the provisions of the new fire code would apply.

Mr David Johnson: If you knew and could prove that it was implemented after July 1993 -- is that the date?

Mr Douglas: Correct.

Mr David Johnson: Then there's one set of provisions that would apply. If you had proof that it was installed before July 1993, there's another set of provisions that apply: It's just the building code that applies?

Hon Ms Gigantes: Now it's the building code.

Mr David Johnson: Yes, that's the building code.

Mr Douglas: If it's a new house, you know it was built with one unit.

Mr David Johnson: Yes. Forget about the new house. Let's take an old house and there's a unit, but we don't -- maybe before or maybe after. What is the prime difference then between the building code, as it stands, and the standards that were brought in in July 1993? What would be the prime difference?

Mr Douglas: The building code was amended in July 1993 in two basic ways relative to apartments in houses. First of all, specific standards were included in part 11 for units added to existing houses and, secondly, there was a provision that a change-of-use permit be obtained when a unit was added after July 1993.

Mr David Johnson: In terms of the actual -- I'm thinking of the safety standards, though. Is there any difference in the safety standards between -- ?

Mr Douglas: No.

Hon Ms Gigantes: The fire code is the fire code is the fire code.

Mr Douglas: The fire code will apply to all the units regardless of when they were added, and the fire code standards are very similar to part 11 of the building code standards.

Mr David Johnson: What confuses me, Minister, is that you made the statement that all new apartments will only be legal if they have a building permit, but most of them will go in -- or some of them certainly will go in without building permits, and then we got into this business about July 1993 being an important date.

I'm trying to put all this together because I think you will have -- if it's important, you'll certainly have people, if they don't get a permit and put in an apartment, many of them will claim they put it in five years ago or two years ago or whatever. What difference will that make in terms of the safety?

Mr Douglas: If a unit is installed without a building permit, the property owner commits an offence. If they are not caught for committing that offence and the unit does not meet the fire code standards, they can be caught later on as the result of a fire inspection for not meeting the fire code standards, which are very close to the building code standards in key areas.

Mr David Johnson: Yes, because as you say, the only way the building department can get in is to prove reasonable grounds. Again, I think it will be really tough to prove reasonable grounds. Then once the apartment is finished and the building inspector gets in, the owner will just say: "Well, I built this in 1991. Prove I didn't."

Mr Douglas: In which case the property standards and the fire code would apply to an existing use.

Mr David Johnson: So what is the significance of July 1993 then?

Mr Douglas: That relates to the change-in-use provisions. Before July 1993, if you could add a unit to a house without needing a building permit -- for example, just by locking an interior door -- the building code would not apply. After July 1993, adding a second unit means a change-in-use permit has to be obtained even if construction is not needed.

Mr David Johnson: I want to get back to your colleague here. Your colleague indicated that there are conditions where you wouldn't need a permit.

Mr Melville: It would have to be prior to 1993.

Mr David Johnson: Prior. But you're saying that if it happens after 1993, even if you do some mundane thing -- I think if you change any structural wall, you need a building permit, but if you're just plastering an exterior wall, today you wouldn't need a building permit to do that. But you're saying that under this bill now that came in in July 1993, no matter how minor it is, you still need a building permit.

Mr Douglas: If you change the use of a property in a way that affects the risk of that property, a change-in-use permit is required, and going from one unit to two units falls under that definition.

Mr David Johnson: But it still boils down to, if anybody's going to get in, they'll need reasonable grounds.

I see everybody rustling around. Have we run out of time?

The Chair: We still have some time, and Mr Mills would like to ask a question.

Mr Mills: I'd like to take up on obtaining the search warrant and having reasonable and probable grounds to do so, and I speak with some experience of procuring those documents.

It's my understanding that when new legislation has been introduced such as Bill 120 -- I worked in another life where new legislation was introduced which gave some inspection staff, including mine, what we considered to be some really drastic powers. Having sensed that these powers would somehow throw a bolt into the judicial system and the JPs and everything, people took it upon themselves to meet with the judiciary and the administrators of court and go through the legislation to explain, first of all, the powers that were now granted to us in our capacity, and then they sort of said, "Come to grips with it."

In all fairness, recognizing your concerns about reasonable and probable grounds, I would imagine that fire chiefs will go to their local court administrator or something, present Bill 120 as something new in so far as obtaining a search warrant is concerned, that you're not going to seize any property, and some amicable discussions could be taken between those two people that would suggest, "Well, now we understand it," and the issuance of a search warrant when needed would be that much more facilitated through that discussion.

I've done this myself when we anticipated some real problems with the powers that we were given. Having explained it to those folks, we didn't have any problems about entering and seizing books and whatever. I would think that the same introduction to Bill 120 for the necessary authorities would help in that manner.

The Chair: The committee is adjourned.

The committee adjourned at 1800.