New local government powers: bona fide or illusory?

The policy pendulum that swings between centralized and decentralized control has been veering back and forth as new legislation gives more muscle to municipalities in some areas and more power to provinces in others.

While municipalities appear to have won the policy lottery on a local level, the province retains enough clout to stop them taking home the prize. And what will municipalities do with it anyway?

There is a feeling across the province that, like adolescents reaching adulthood, municipal governments have come of age and should be given the freedom to prove their worth. They are seen as a maturing form of government with a professional approach to local management, and they are being rewarded with the trust and tools to run their own show.

George Rust-D'Eye of WeirFoulds LLP says the courts' support of municipal decision-making in recent years has been influential on higher levels of government.

"Every attack on municipal by-laws before the Supreme Court in the last 10 years has been unsuccessful," he points out. "The judges say, 'It's an elected body that's been given broad powers. The province intends it to have a broad discretion so we defer to the municipality.'"

The biggest indication of provincial endorsement of this approach appears in Bill 53, the Stronger City of Toronto for a Stronger Ontario Act. Rust-D'Eye says people will shake their heads when they read the bill, particularly s. 8, which contains a carte blanche regulatory power that states, "The City may provide any service or thing the City considers necessary or desirable for the public."

 "That's quite different from the previous approach in the Municipalities Act 2001," says Rust-D'Eye. "First of all, 'services' and 'things' are not defined. They are not limited to traditional utilities. The city could decide there aren't enough stores servicing a particular area and open a bunch of stores. It could cover business licensing, hours of operation or curfews. It shifts over to the city the need to balance public and private interest."

He says he is startled by the wide power to delegate under s. 20.

"Elsewhere in the act there is an emphasis on accountability in reporting, maintaining and adapting policy, but in this section it is less strict. Generally a legislative body that is also a quasi-judicial decision-making body can't delegate. It's elected to do the job, so it has to do it itself."

He points out that this would give the city the power to restore the metro system of government. "Each county council could have power to legislate, or they could delegate anything to the mayor ? the appointment and termination of heads of committees, for example."

Another gift to the city is a general power to impose fees and charges.

"They can impose fees on anything and can provide anything," says Rust-D'Eye. "There is power to direct taxation subject to a long list of exceptions. They could put a tax on alcohol, entertainment, and tobacco right now, and perhaps on commercial concentration and parking lots. At the end of the day I don't know how useful it will be, but it's there."

Historically, the province has kept municipalities on a short leash and it hasn't completely let go.

"The principle limitation reading the bill as a whole is that the city can't frustrate the provincial policies and plans, and there are still broad powers to overrule," says Rust-D'Eye. "It's a massive act, about two inches thick, and there are about 130 powers to the province to pass regulations overriding the city. I believe the province genuinely intends the city to be as close to independent as possible. It is trusting the city to make good decisions, but saying, 'Don't go too far.' If they do, bang!"

Rust-D'Eye says the province may well extend the principles in the new City of Toronto act to other municipalities.

Lawyer Lyn Townsend Renaud of Oakville agrees. "I would be surprised if the other councils didn't ask for it, especially those adjacent to Toronto."

In any case, other municipalities have already been given significant new powers through the recent changes to planning law. The big question is, how closely will the province be supervising the new powers and how often will it use its powers to overrule municipal decisions?

In the case of nonconformity with provincial plans, the Minister of Municipal Affairs and Housing can amend an official plan, with no avenue of appeal. He can also require municipalities to pass by-laws and prescribe powers that must be exercised by municipality.

"It's a very open question but an important one," says Townsend Renaud. "One of the key planks in the changes the province is making is the need for municipalities to comply and for there to be follow-up. I don't think we know yet how the province is going to staff itself up. What will happen, I think, is that developers and resident groups and other persons interested in the system will be knocking on the province's door, for example if intensification doesn't occur where its meant to occur, or waterfront isn't being retained where it should be. I don't see the municipalities knocking on the province's door."

It may be that the municipalities don't exercise all of the powers they have been given even though they lobbied hard to get them. Having won the lottery, they might find the prize a little more than they can handle.

The word on the street is that Toronto will be the only municipality to set up a local appeal board, leaving the Ontario Municipal Board in place as a convenient scapegoat for the other councils.

Rust-D'Eye thinks it may be a case of "be careful what you wish for."

"The more you take on, the more you increase the political complexity in decision-making," he warns.

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