IMA Insti-News | Fall/Winter 2020

INSTI-NEWS FALL / W I N TE R 2 02 0

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IN THIS ISSUE PAGE

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STAY CONNECTED

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MEMBER ELEVATIONS

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EXPROPRIATION OF CONTAMINATED LAND AND ITS FAIR MARKET VALUATION Talia Gordner, Ralph Cuervo-Lorens & Courteney Rickert

22 IN MEMORIAM

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PRESIDENT’S REPORT Terry Peckham, M.I.M.A.

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COMMUNITY BENEFITS, DEVELOPMENT CHARGES AND PARKLAND DEDICATION: THE NEW FRAMEWORK Rebecca Hines & Patrick J. Harrington

2020 FALL VIRTUAL SYMPOSIUM RECAP Tyler Callaghan, MBA

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PROVINCE MOVES FORWARD WITH IMPLEMENTATION OF ONTARIO HERITAGE ACT AMENDMENTS Adrianna Pilkington & Signe Leisk

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THE GREAT OFFICE SPACE REALIGNMENT Ryan Swehla, CCIM, CPM

RESPONDING TO CHALLENGES TO ASSESSMENTS DURING THE PANDEMIC Joe Regina, M.I.M.A.

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NAVIGATING ETHICAL DILEMMAS (CPD OFFERING) LAUNCHED

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FALL/WINTER 2020 ISSUE Insti-News is published by the Institute of Municipal Assessors with assistance from the Communications Services Committee. Chaired by: Gina Stone, A.I.M.A.

Any opinions or recommendations expressed in this issue are those of the contributors and do not necessarily reflect the views of the IMA.

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Interested in submitting an article? Have a great idea for a hot topic? Make your submission to info@theima.ca. Be sure to put “Insti-News Submission” in the subject line or contact the IMA office by phone to discuss.

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CONTACT

Institute of Municipal Assessors 10720 Yonge Street, Suite 206 Richmond Hill, ON L4C 3C9 905-884-1959 1-877-8703 (f) 905-884-9263

STAY CONNECTED https://theima.ca/

@the_ima1957

@theima.ca

Institute of Municipal Assessors

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PRESIDENT’S REPORT As we approach the winter months with our Virtual Symposium behind us and a clear path for the IMA ahead, I am excited for what the Institute represents and how it will continue to serve its members long after we have beaten this pandemic.

While many things might never go back to being the same, a “new normal” will certainly take shape. Retail will be the way it was as more and more people become accustomed to online shopping, and many people will continue to work from home even after offices are re-opened.

More business will continue to be conducted on virtual platforms as we find the benefits to this carry significant weight too.

One thing we have learned over the last several months is just how resilient we are. We’ve adapted quickly, finding new ways to communicate, share information and to do business without formal face-to-face meetings and introductions. However, is there a cost?

Many of us have built partnerships and networks with others before the pandemic interrupted our ability to meet and continue to build these relationships. Now, we communicate online to continue our networks and our businesses with success. But, what happens to the new people who just came into the business? Is being tech savvy enough to allow them to build networks or connections that are beneficial in the future? Do these types of networks have a personal side to them the same as when you meet face to face and engage in discussion.

I would surmise that the real positive and negative impacts of COVID-19 will not be understood for quite some time.

For the IMA, it was a successful Virtual Symposium and in many ways it was an exciting and informative experience. I would like to say thank-you to everyone who worked on the planning, organization and success of the event. A special thank-you to the presenters and panel participants and to Tyler and Nancy for their hard work behind the scenes all through the planning and during the event.

As we near the end of the year, I recount that the IMA has been successful in navigating around the pandemic and has embraced change and achieved many things in the last several months. We are on a path to continuously improve our course material and offerings and these offering are available online. Our membership has access to a new website and we have changed the face of our organization. Ending this year we have a clear path forward and the determination to evolve our organization for the future to meet the needs of our members everywhere.

Over the next several months, the IMA will be assisting districts with planning their spring meeting and virtual platforms.

We will also be working on the operational side of our 2020-23 Strategic Plan and I look forward to the successes and partnerships that this may bring as we move forward.

Stay safe!

Terry Peckham, M.I.M.A. President of the Institute of Municipal Assessors

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2020 FALL VIRTUAL SYMPOSIUM RECAP

On November 2nd and 3rd, the IMA hosted its first Fall Virtual Symposium for over 275 delegates from across Canada.

Attendees gathered for a day and half of spirited professional development in the interactive and engaging virtual conference centre. Read more about the Symposium below.

Session Overviews The symposium featured five session, below is a snap shot of the key learnings:

Everyday Resilience in Ever-Changing Times Presented by: Dr. Robyne Hanley-Dafoe

Dr. Hanley-Dafoe opened the Symposium with a powerful message on the importance of personal resilience and selfcare; especially in the COVID-19 world we’re currently living in. She introduced her Five Pillars of Resiliency; Belonging, Perspective, Acceptance, Hope and Humour. She shared strategies to help foster each pillar in ourselves and others, based on research-informed best practices and real-world applications. As one attendee said, “Dr. Robyn was an amazing speaker, and her message was extremely relevant during these times.”

COVID-19: Policy and Valuation Challenges Panelists: Panel Chair: Carlos Resendes, Director, IPTI Dr. Enid Slack, Director, Institute of Municipal Finance, University of Toronto Tamara Katz, Partner, Gardiner Roberts LLP Alan Arcand, Chief Economist, Canadian Manufacturers & Exporters

To say that 2020 has been a challenge to policy and valuation would be an understatement. During this session, panelists engaged in an animated discussion on the effects of the COVID-19 lockdown, addressing the impact on municipal budgets, assessing authorities and the taxpayers.

They explored how the various, but interconnected, segments of the industry responded to the crisis and provided some insights on what might lie ahead.

Canadian Directors of Assessment Services Panel Discussion

It is not every day we get to hear from assessment leaders from across the country. As you can imagine, there were no shortage of topics given the world we are currently living in. The engaging and interactive cross-country discussion navigated the complex issues facing the Canadian assessment landscape in 2020. The group provided regional updates and explored issues pertaining to staffing, remote leadership, AI, and staff training. With each agency in a different stage of their assessment cycle, the open discussion revealed associated complexities. While there are differences, as one attendee said, “It was great to understand the situation across the country and see just how similar it is!”

Panelists: Panel Chair: Paul Sanderson, President, IPTI Irwin Blank, CEO, SAMA Kathy Gillis, CEO, PVSC Jason Grant, CEO, BC Assessment Sean Martin, CEO, Municipal Assessment Agency Nicole McNeill, CEO, MPAC

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How Technology is Changing Legacy Industries (and processes) from the Ground Up Presented by: Erin Bury

As a serial entrepreneur, Erin knows the importance of embracing technology or risk obsolescence. Erin spoke to attendees about her journey as an entrepreneur and how everyone, including non-entrepreneurs, can embrace the mindset and principles to excel in their work. Technology has touched every industry, from hospitality, to transportation, to finance, and it has made companies rethink traditional ways of doing things. The pandemic has forced us all to reimagine traditional ways of doing things and Erin gave attendees tips and suggestions to embrace those changes.

COVID-19: Hearing and Litigation Challenges

Panelists: Jerry Grad, CEO, IPTI Jeff Grad, President, Equitable Value Warren Morris, Morris Mediations and the former ARB Member Kathleen Poole, Nixon Poole Lackie LLP Ashtyn Rank. Manager of Case Management, MPAC Jerry and the panel of experts explored the impacts of COVID-19 from a hearing’s perspective. They delved into the new world of virtual hearings, offering their advice on what to expect and discussed the new set of best practices. They addressed the role of mediation as an effective tool in dispute resolution and detailed how our new digital world is changing that landscape as well. Finally, they drew on recent cases of interest to reveal how litigation is responding to the pandemic. As one attendee observed, “This session explored some of the most relevant topics these days.”

Thank you to all the presenters and panelists listed above for a fantastic 2020 program!

What did Attendees Have to Say? The Symposium feedback was outstanding, with an average overall rating of 8.5/10. Here’s what attendees had to say: “Loved the virtual format! Everything started on time… There were no distractions from other tables. All speakers could be heard clearly. Great! Only thing I missed was the buffet meals!”

“The Symposium surpassed my expectations. The IMA did a wonderful job putting this together!”

“Everything went smooth and it was a perfect variety of topics. It was a welcome breath of fresh air.”

“Great first virtual event for the IMA! Really enjoyed all of the sessions.”

“As the first IMA event of this kind, the Symposium was way better than I expected. Organizers and presenters should be very proud of what they accomplished”

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Unveiling of the 2020-23 Strategic Plan Day one of the Virtual Symposium concluded with the unveiling of the IMA’s 2020-23 Strategic Plan. IMA President Terry Peckham, M.I.M.A., provided detailed history about the plan and highlighted its importance for the Institute. He invited Jeffrey Climans, M.I.M.A., of Urban Counsel to present the findings of his independent stakeholder research, which ultimately informed on the final plan.

Jeffrey walked attendees through the results of the membership survey and subsequent stakeholder focus groups conducted over 2019 and 2020. Results from Jeffrey’s research can be found on the Member Resources page of the IMA website.

As Ex-Officio member of the Future of the IMA Ad Hoc Committee tasked with drafting the plan, 1st Vice President Caterina Chiarandini, M.I.M.A., presented the plan in detail. She spoke to the four strategic pillars underpinning the document: Educate, Grow, Lead and Govern. Strategic goals and sample actions were presented to paint a clear picture of where the Institute wishes to go over the course of the next three years.

To conclude the session, IMA’s Executive Director Tyler Callaghan, delved into the operational considerations for the plan and addressed next steps to bring the strategic document to life. His message was clear; “This guiding plan was created as a living document, not one to be placed on a shelf for the next three years. It will be at the forefront of our decision-making, with its performance being assessed annually. The next step is the development of a detailed operational plan; one which ensures we meet our strategic objectives and goals with measurable outcomes”.

Read the 2020-23 Strategic Plan While the Strategic Plan was created with input from hundreds of members/stakeholders, the IMA would like to thank the Future of the IMA Committee members for their role in analyzing and synthesizing the data into the final Strategic Plan. Thank you to the following Committee members: Caterina Chiarandini, M.I.M.A., Ex-Officio Lisa Beaulieu, A.I.M.A., City of North Bay Charlene MacNeil, M.I.M.A., PVSC (Nova Scotia) Carlos Resendes, M.I.M.A., Director of IPTI Drew Samuels, A.I.M.A. – DuCharme, McMillan and Associates Jason Vink, M.I.M.A., MPAC

Symposium on Demand Did you miss out on the 2020 Fall Virtual Symposium? Don’t worry, we’ve got you covered! While we certainly miss in-person events, one of the benefits of virtual sessions are the ability to view at a later date. We’ve made five Fall Symposium sessions available in an “a-la-carte” format to select and view those of interest.

Earn IMA, AIC and LSO credits from the comfort and safety of home! Available until December 31, 2020.

Read more and register here.

Thank You! Thank you to all Symposium presenters, sponsors, volunteers, and delegates for helping make our first major virtual event such a success! A special thank you to Symposium partner IPTI for assembling three fantastic panels of experts – we truly could not have hosted without you.

While our world has certainly changed, our dedication to serving the evolving needs of our members remains steadfast.

Thank you all for a wonderful 2020 Fall Virtual Symposium!

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MEMBER ELEVATIONS THE IMA WOULD LIKE TO CONGRATULATE ITS RECENTLY ELEVATED AND NEWLY APPOINTED MEMBERS! AFFILIATE MEMBERS NAME Roger Avery Rebecca Skanes Susan Stibbe Tina Budden Roxanne Wheaton Xiao Liu

Shawn Locey Stephanie Munday Reilly Mawhinney Kevin Yee Soonyoung Chae Kristen Doyle Melanie Dube Diane Dumalag Donna Graves Anna Hrynko Kenneth Tam Tina Braga Daniel Leduc Sam Mitukiewicz Brett Nasello Carolyn Nelson Kimberly Phair Connor Poulain Hyun Son Jenny Rose Tomas Baca Shannon Madge Aidan Mailer Steven Koutsovitis Jasmine Labelle Emil Lupascu

COMPANY Municipal Assessment Agency, St. John’s NL Municipal Assessment Agency, St. John’s NL Royal Lepage Estate Realty Municipal Assessment Agency, Gander Municipal Assessment Agency, Gander MPAC Richmond Hill MPAC Cornwall MPAC Trenton StorageVault Canada Ltd. MPAC Pickering Equitable Value Inc. MPAC Trenton Service New Brunswick Equitable Value Inc. MPAC Pickering Ryan ULC The Timeless Material MPAC Kitchener MPAC Toronto MPAC Kitchener MPAC Pickering City of Windsor MPAC Owen Sound MPAC Trenton MPAC Sarnia MPAC Barrie MPAC Toronto MPAC London MPAC Toronto MPAC Toronto MPAC North Bay StorageVault Canada Ltd.

A.I.M.A. MEMBERS NAME Alec Miller

Jack Lee

Sunny Zendeli Harry Adzoho Kelly Dimaras Michelle Heslop Brett Robinson Colin Alexander Yinglian Li Abbigail Matticks-Hibbert Paul Obara Grace Xian Matthew McIntyre Sora Kim Mario Levesque Brittany Allen Anthony DiFonzo Vahid Tolooei

COMPANY MPAC Windsor Altus Group Ltd. Altus Group Ltd. MPAC Mississauga MPAC Toronto Town of Lakeshore N/A City of Ottawa MPAC Pickering Recent Graduate Ministry of Finance MPAC Richmond Hill MPAC Ottawa MPAC Ottawa MPAC Timmins MPAC London MPAC Toronto MPAC Barrie

M.I.M.A. MEMBERS NAME Stephanie Pignataro

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COMPANY City of Toronto

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COMMUNITY BENEFITS, DEVELOPMENT CHARGES AND PARKLAND DEDICATION: THE NEW FRAMEWORK Rebecca Hines & Patrick J. Harrington Aird & Berlis LLP

Introduction After much consultation by the Province (and just as much speculation by industry folks), the features of the new community benefits, development charges (“DCs”) and parkland dedication legislative framework have been confirmed.

On September 18, 2020, the Province proclaimed into force the remaining amendments that Bill 108, which received Royal Assent on June 6, 2019 as the More Homes, More Choice Act (“Bill 108”), and Bill 197, which received Royal Assent on July 21, 2020 as the COVID-19 Economic Recovery Act (“Bill 197”), made to the Planning Act and the Development Charges Act, 1997.

The various changes proposed and enacted under Bill 108 and Bill 197 were discussed by our Municipal & Land Use Planning Group here, here and here. The Province also made a new Regulation under the Planning Act, Ontario Regulation (“O. Reg.”) 509/20, setting out the prescribed information with respect to the new community benefits charge (“CBC”) authority under section 37 of the statute and the amended parkland dedication provisions under section 42.

The new framework is, in large part, intended to provide more certainty and predictability regarding the costs of development.

For example, gone will be the days of negotiating “section 37 agreements”. These precarious legal instruments will effectively be replaced with a set maximum “cap” amount that may be imposed as a CBC, detailed below. While the ability to impose a CBC is broader than the previous section 37 regime – the trigger for a CBC mirrors the trigger for DCs, whereas section 37 benefits could only be imposed when an increase in height or density is being approved – it should be easier for proponents to determine the approximate or estimated costs of a project at the outset of same, rather than having to wait until much later. Furthermore, new CBC and parkland dedication by-law appeal rights will provide proponents with additional avenues for engaging in and seeking to influence the development process.

This article provides a high-level overview of the pertinent aspects of the new CBC authority and amended parkland dedication provisions, including the content of new O. Reg. 509/02, under the Planning Act and the amended DC provisions under the Development Charges Act, 1997. The Province has given municipalities until September 18, 2022 to implement the legislative and administrative changes necessary to transition to this new framework.

Community Benefits Charges Section 37 of the Planning Act now authorizes a municipality to “impose community benefits charges against land to pay for the capital costs of facilities, services and matters required because of development or redevelopment.” This section does not include an itemized list of what “facilities, services and matters” may be charged for, nor does O. Reg. 509/20. In this sense, the CBC authority is broad. It may be used to impose charges for services listed under the Development Charges Act, 1997 and/or parkland. However, the framework precludes a municipality from charging for the same matter twice using different mechanisms.

The maximum amount of a CBC “shall not” exceed four percent (4%) of the value of the lands in question as of the “valuation date”. The valuation date is the day before the date the first (or only) building permit is issued in respect of the development or redevelopment in question. Municipalities may accept in-kind contributions in satisfaction of all or part of an amount owing under a CBC. The value of an in-kind contribution would be deducted from the total amount owing. However, the value assigned to the in-kind contribution is ultimately assigned by the municipal authority. There is no mechanism to force a municipality to accept a specific value for a proposed in-kind contribution.

If a land owner is of the view that an amount imposed by a municipality as a CBC exceeds the maximum amount permitted under the statute, they may make the payment under protest and submit an appraisal attesting to the value of the land within

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the prescribed timeframe of 30 days. If the municipality does not provide its own appraisal within 45 days, the land owner’s appraisal is deemed to be correct and the land owner may be entitled to a refund. If the municipality does properly provide an appraisal, and the values determined under each of the two appraisals are within five percent (5%) of one another, the land owner may be entitled to a refund in accordance with the applicable provisions of the statute. If the value determinations exceed that percentage, a third and final appraisal will be obtained within 60 days and in accordance with the applicable provisions of the statute to settle the matter.

The CBC authority is limited in certain respects. Some forms of development and redevelopment are “excluded” from the imposition of CBCs. These include buildings with fewer than five storeys and/or 10 residential units. Other prescribed types of development are excluded in accordance with O. Reg. 509/20. These include development or redevelopment for long-term care homes, retirement homes and hospice uses, specified uses by certain post-secondary institutions and otherwise.

O. Reg. 509/20 also includes provisions on the following prescribed matters: the information that must be included in the CBC strategy that a municipality is required to prepare before passing a CBC by-law; notice requirements for the passing of a CBC by-law; the minimum interest rate that would apply to a refund provided by a municipality in the event of a successful appeal of a CBC by-law to the Local Planning Appeal Tribunal (the “Tribunal”); and the reports that a municipality must provide annually to the public regarding the new “special account” for CBC revenue.

Transitional matters are set out in the new section 37.1 with respect to by-laws passed under section 34 of the Planning Act that include any requirement to provide facilities, services or matters under the now former section 37 (i.e. an existing zoning by-law or zoning by-law amendment that imposes section 37 benefits). The applicability of these provisions will depend on the particular aspects of a given case.

We recommend having any specific section 37 agreement requirements reviewed by a member of our Group for an opinion on the applicability of these transitional provisions.

Parkland Dedication Two omnibus pieces of legislation and one global pandemic later, the parkland dedication requirements under section 42 of the Planning Act remain relatively unchanged. A municipality may still require that land be conveyed to it for park or other public recreational purposes as a condition of development. The amount of land to be conveyed will continue to be determined in accordance with the “standard rate” or an “alternative rate” provided by the applicable parkland dedication by-law.

Although Bill 108 proposed to repeal the alternative rate option, it was saved by Bill 197.

New aspects of section 42 include the establishment of a right of appeal (and corresponding appeal process) from a municipality’s decision to adopt a parkland dedication by-law or an amendment to same that provides for an alternative rate.

O. Reg. 509/20 also includes: notice requirements for the passing of a parkland dedication by-law; the minimum interest rate that would apply to a refund provided by a municipality in the event of a successful appeal of an applicable by-law to the Tribunal; and requirements pertaining to the reports that a municipality must provide annually to the public regarding the “special account” for specified parkland revenues.

Section 42 contains no transitional provisions, but given that where the Province landed on this issue roughly approximates where they started, there is not really anything to transition from or to when it comes to parkland dedication.

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Development Charges Municipalities may now only impose DCs for those services specifically listed in subsection 2(4) of the Development Charges Act, 1997: 1. Water supply services, including distribution and treatment services.

12. Services provided by a board within the meaning of the Public Libraries Act.

2. Waste water services, including sewers and treatment services.

13. Services related to long-term care.

3. Storm water drainage and control services.

4. Services related to a highway as defined in subsection 1 (1) of the Municipal Act, 2001 or subsection 3 (1) of the City of Toronto Act, 2006, as the case may be.

5. Electrical power services.

6. Toronto-York subway extension, as defined in subsection 5.1 (1).

15. Services related to public health.

16. Child care and early years programs and services within the meaning of Part VI of the Child Care and Early Years Act, 2014 and any related services.

17. Housing services.

7. Transit services other than the Toronto-York subway extension.

18. Services related to proceedings under the Provincial Offences Act, including by-law enforcement services and municipally administered court services.

8. Waste diversion services.

19. Services related to emergency preparedness.

9. Policing services.

20. Services related to airports, but only in the Regional Municipality of Waterloo.

10. Fire protection services.

11. Ambulance services.

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14. Parks and recreation services, but not the acquisition of land for parks.

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21. Additional services as prescribed.

The above is a “closed list”, meaning that only the services listed in subsection 2(4) of the statute may form part of a DC bylaw. That being said, a municipality is not compelled to use DCs to charge for these services. A municipality may elect to impose CBCs instead. However, as noted above, the framework precludes a municipality from charging for the same service twice as both a DC and a CBC. Certain development is excluded from the imposition of development charges, such as when the only effect of the development is to enlarge an existing dwelling unit (i.e. a low-scale renovation). An exemption also applies to the creation of a second dwelling unit in “prescribed classes of proposed new residential buildings” and subject to certain restrictions. Municipalities remain at liberty to prescribe additional exclusions through their individual DC by-laws.

Transitional matters are set out in new section 9.1 regarding the status of existing DC by-laws and other related matters. As with the CBC transitional provisions, the specific applicability of these provisions will depend on the DC by-law in question. We recommend referring any specific inquiries to a member of our Group for an opinion on the applicability of these transitional provisions.

Conclusions The next step in the implementation of the new CBC regime will be for municipalities to undertake their CBC studies in accordance with the prescribed requirements under section 2 of O. Reg. 509/20. From there, municipal staff will need to bring forward a CBC by-law for public review and comment. Once a CBC by-law is passed by Council, it may be subject to appeal. “Any person or public body” may appeal a CBC by-law to the Tribunal. Any appeals from a newly-enacted CBC bylaw will be the first of their kind, though some guidance will likely be available from prior Tribunal decisions on DC by-law appeals, given the similarities between the two.

Municipalities will also need to bring forward either new DC by-laws or amendments to their existing DC by-laws to ensure their by-laws comply with new subsection 2(4) of the Development Charges Act, 1997. “Any person or organization” may appeal a DC by-law or a DC by-law amendment to the Tribunal.

Finally, on parkland dedication, the new appeal right from the passage of parkland dedication by-laws will give affected stakeholders a direct route to the Tribunal. Those involved in the eight-year parkland saga in Richmond Hill can likely attest to how a more direct route to potential resolutions was needed. However, with an easier appeal route, more appeals are likely to come.

The more things change...the more they stay the same!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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PROVINCE MOVES FORWARD WITH IMPLEMENTATION OF ONTARIO HERITAGE ACT AMENDMENTS Adrianna Pilkington & Signe Leisk Cassels Brock & Blackwell LLP

On September 21, 2020, the Province published notice of a proposed regulation under the Ontario Heritage Act, finally implementing amendments passed as part of Bill 108, the More Homes, More Choice Act, 2019. See Cassels’ previous reports on the Bill here and here. Both the amended Act and the regulation are to come into force on January 1, 2021. Updates to the Ontario Heritage Tool Kit, a series of guidance documents relied upon by municipalities, professionals and proponents, will follow later this year.

REQUIREMENTS AND PRINCIPLES The stated objective of the proposed regulation is “to improve provincial direction on how to use the Ontario Heritage Act, provide clearer rules and tools for decision making, and support consistency in the appeals process.” While the requirements appear to reflect current best practices, the goal is to improve process consistency and transparency.

However, the highly anticipated list of principles a council must consider when making decisions on specified matters under the Act are brief, do not recognize property owner’s interests, and are otherwise extremely broad, potentially leaving the determination as to what has heritage value unpredictable and inconsistent.

EXCEPTIONS TO TIMELINES The proposed regulation applies the Bill 108 90-day timeline for issuing a notice of intention to designate to an official plan amendment, zoning by-law amendment or plan of subdivision application determined to be complete. However, the draft regulation provides for “new and relevant information” to add up to 270 days to the initial 90-day timeline. If a heritage committee was not consulted during the initial 90 days, a further 90 days is permitted. Acceptable reasons for such failure to consult are not specified. “New and relevant information” can also add 180 days to the 120-day timeline to pass a designation by-law after a notice of intention to designate has been issued, potentially resulting in further delay.

TRANSITION The Bill 108 amendments/proposed regulation will apply to matters or proceedings commenced as of the in force date, proposed as January 1, 2021. The provisions generally provide that municipally-initiated matters, such as notices of intention to designate a property, commence as of the date of published notice, whereas as proponent-initiated proceedings commence as of the date the application is received. For heritage conservation district (HCD) matters, the date of by-law passage is the commencement date. A lapsing provision for a notice of intention to designate has also been included which results in the new process applying if a municipality does not pass the designating by-law within 365 days, subject to any objection to the proposed designation.

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SUMMARY In summary, the proposed general regulation prescribes the following: 1. Principles that a council shall consider when making decisions on designation by-laws, including amendments and repeals, with respect to applications to alter, demolish or remove a structure or attribute, designation of an HCD and plan and subsequent alteration, erection or removal permits. The principles are: Property that is determined to be of cultural heritage value or interest should be protected and conserved for all generations.

Decisions affecting the cultural heritage value or interest of a property or HCD should, minimize adverse impacts to the cultural heritage value or interest of the property or district, be based on research, appropriate studies and documentary evidence, and demonstrate openness and transparency by considering the views of all interested persons and communities.

Conservation of properties of cultural heritage value or interest should be achieved through identification, protection and wise management, including adaptive reuse (proposed to be defined as the alteration of a property of cultural heritage value or interest to fit new uses or circumstances while retaining the heritage attributes of the property) where appropriate.

2. Mandatory requirements for designation by-laws, to include: A plan, drawing, photograph or other image that identifies each area of the property that has cultural heritage value or interest Statement on which criteria from O. Regulation 9/06 are met and how such criterion is met The description of the heritage attributes “must be brief” and explain how each identified heritage attribute contributes to the cultural heritage value or interest of the property.

The by-law may list physical features of the property that are not heritage attributes.

3. The new Bill 108 90-day timeline for issuing a notice of intention to designate applies to notices of complete application for official plan amendments, zoning by-law amendments, or plans of subdivision. It would cease to apply after the application is finally disposed of under the Planning Act. Exceptions to when the timeline would apply are proposed to be: Where the owner and council agree During a declared emergency, which provides a further full 90 days the day after the emergency is terminated If the heritage committee had not been consulted, which council can determine up to 15 days after the end of the 90-day period and which provides for a further 180 days Where “new and relevant information” relating to the property is received; if it is received after the 90-day period, council can defer by resolution a new 90-day period for 180 days, if it is received within the 90-day period, the council can elect to take a further 180 days. The proposed regulation details criteria for what constitutes “new and relevant” information and materials, being information or materials that are received after the notice of complete planning application is made and which did not form part of the planning submission, and that may affect the determination of the cultural heritage value or interest of the property or an evaluation of the potential effect of the Planning Act application on the cultural heritage value or interest of the property.

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4. Exceptions to the new Bill 108 120-day timeline to pass a designation by-law after a notice of intention to designate has been issued are: Where the owner and council agree within the 120 period Where any part of the 120 period is during a declared emergency, which provides a full 120 days subsequent to the termination of the emergency Where “new and relevant information” related to the property is received prior to by-law passage, which permits council to, by resolution, extend the time period by 180 days. The proposed regulation details “new and relevant” qualifying criteria to be information or materials that is received after publication of the notice of intention to designate and that may affect the statement of cultural heritage value or interest of the property or the description of heritage attributes.

5. Minimum requirements for complete applications for alteration or demolition of heritage properties. Requirements include photographs, drawings and written specifications, technical studies, the reasons for the proposed alteration, demolition or removal, and the potential impacts to heritage attributes. Municipalities may require additional information or materials by by-law, resolution, or official plan. Electronic submission is permitted if a municipality has such system.

6. Steps that must be taken when council has consented to the demolition or removal of a building or structure, or a heritage attribute.

The current Act provides that were council consents or the LPAT orders the council to consent to demolition or removal, council shall repeal the designation by-law in whole or in part. The proposed steps differentiate on the basis of whether the by-law remains relevant. The steps require the council in consultation with the heritage committee to first determine if, 1. the property continues to have cultural heritage value or interest and the statement and attributes remain accurate 2. the property continues to have cultural heritage value or interest but the statement or attributes is no longer accurate and require amendment, or 3. the property no longer has cultural heritage value or interest as a result of the demolition or removal.

Council is then required to amend where (2) is determined, or repeal the by-law where (3) is determined to apply. Sections 29, 20.1 and 31 of the Act do not apply, leaving council’s decisions unappealable to the LPAT. For a structure removed to another property, council shall consider designation of the new property and may proceed to pass a designating by-law in a prescribed modified process. While such by-law is deemed to be a designating by-law, the designation is also unappealable to the LPAT. 7. Information and material to be provided to the LPAT when there is an appeal of a municipal decision, which for most decisions includes any materials and information council considered in making its decision, a copy of any report considered by council, a statement by an employee of the municipality as to how council’s decision considered the prescribed principles, copies of written comments, public meeting minutes and list of persons who made submissions and their submission (if available).

8. Housekeeping amendments related to amending a designation by-law and an owner’s reapplication for the repeal of a designation by-law, including a twelve-month restriction on re-application for repeal of a designation by-law, to be calculated from notice of council’s or the LPAT’s decision.

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9. Transition provisions specify that the commencement date, as variously defined, for the various proceedings or matters will determine whether a matter is under the pre- or post- Bill 108/proposed regulation regime. The following matters commenced on or before December 31, 2020 will be dealt with under the current Act: Where notice of intention to designate a property under s. 29(3)(b) of the Act has been published, subject to a lapsing period noted below Where notice of intention to repeal a designation under s. 31(3)(b) of the Act has been published Where notice of a proposed designating by-law amendment has been published under s. 30.1 of the Act, or, in the case of a clarifying or correcting by-law under s. 30.1(2) of the Act, when notice has been received by the owner An application is received by council for: Repeal of a by-law under s. 32 of the Act Consent to alter under s. 33 of the Act Consent to demolish or remove under s. 34 of the Act Consent to alter, erect, demolish, or remove within an HCD under s. 42(2.1) of the Act An application for alteration, demolition or removal is received by the Minister under s. 34.5 of the Act A by-law is passed to designate an HCD study area (under s. 40.1 of the Act), designate an HCD (under s. 41 of the Act), or adopt an HCD plan (under s. 41.1(2) of the Act) A few further rules are also specified, including: The proposed regulation provides that if a designating by-law is not passed within 365 days of the notice of intention to designate, the notice is deemed withdrawn. If a municipality wishes to designate the property, a new process will have to be initiated, which would be subject to the Bill 108 amendments/proposed regulation. The period during which any notice of objection is referred to the Conservation Review Board until the date of the Board’s report or subsequent withdrawal of objection is excluded from the 365 days.

If consent to demolish or remove under s. 34 of the Act has been given, deemed given, or the LPAT has ordered the municipality to consent, and the council has not passed the repealing by-law under s. 34.3 of the Act, the Bill 108 amendments/proposed regulation apply. If the repealing by-law is passed, the current pre-Bill 108 regime applies.

The prohibition on notices of intention to designate after 90 days of a complete official plan amendment, zoning by-law amendment, or plan of subdivision application does not apply if notice of the complete application was given prior to January 1, 2021.

Please refer to the full text of the regulation for further details.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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EXPROPRIATION OF CONTAMINATED LAND AND ITS FAIR MARKET VALUATION Talia Gordner, Ralph Cuervo-Lorens & Courteney Rickert (Articling Student) McMillan LLP

The expropriation process in Ontario is governed by the Expropriations Act (the “Act”),[1] which provides property owners with a right to compensation for land confiscated by a statutory authority, being a municipal or provincial government or delegated authority.[2] Compensation for expropriated land is determined in accordance with sections 13 and 14 of the Act and hinges on its fair market value.[3] The determination of an expropriated property’s fair market value can become a contentious and drawn out process where the property is environmentally contaminated.

One of the unique features of the expropriation process in this context is the push and pull between the expropriating authority seeking to reduce the amount of compensation to the property owner based on the existence of environmental contamination and the property owner seeking to limit the negative impact of the property’s environmental condition on its valuation and therefore their compensation.

Under the Act, “market value” is the amount that the land might be expected to realize if sold in the open market by a willing seller to a willing buyer.[4] It represents the “highest and best use” of the land before expropriation. Compensation is then awarded to the property owner based on the fair market value of the property for such use.[5] Market value is not to be influenced by the expropriation itself, how the expropriating authority intends to use the land, or any change in value resulting from the prospect of future development.[6] It is settled law that the environmental condition of expropriated land, including any potential remediation costs, may assist in the determination of its market value. However, whether or not it will reduce the “market value” of the property is decided on a case-by-case basis. Relevant factors considered by the expropriating authority include the nature of the contamination, its potential adverse impacts to human health and the environment, and whether the law requires its remediation.[7] In Masae Ltd v Toronto (Metropolitan),[8] the Ontario Municipal Board (the “OMB”) allowed the City of Toronto to deduct the demolition and soil remediation costs from the overall market value of the expropriated land. It found that commercial development was the highest and best use of the land and “both costs would have to be incurred before a building permit could be obtained.”[9] The Superior Court of Justice (the “SCJ”) subsequently considered this issue in Toronto (City) v Bernardo.[10] Similar to the OMB in Masae, the Court agreed to reduce the market value of the expropriated land by the costs required to clean it up.

However, the Court cautioned that it was not prescribing a general approach to valuing contaminated land under the Act and that remediation costs should not necessarily be deducted from a property’s market valuation in all circumstances.[11] The decision in Simone Group Properties Ltd v Toronto (City)[12] illustrates one of these circumstances. In that case, the OMB dismissed the claim that the market value compensation at issue should be reduced by the cost to remediate certain contaminants at the expropriated property. In doing so, the OMB accepted the evidence of the property owner’s environmental consultant that the contamination on site posed no risk to human health and that the property owner did not have a legal obligation to remediate the land.[13] On appeal, the OMB’s decision was upheld by the Divisional Court.

In contrast, where remediation is required under law or the property’s allowable uses (prior to the expropriation) are constrained by the presence of the contamination, the valuation will often be adjusted to account for these factors.[14] In Canadian Pacific Railway Company v Windsor (City),[15] the OMB rejected the comparable properties used by an appraiser to assess market value because they did not exhibit the same environmental contamination and zoning constraints as the expropriated land.[16] That same year in Mask v Admaston/Bromley (Township),[17] the OMB factored in potential contamination from a neighbouring waste transfer facility when determining the expropriated land’s highest and best use.[18]

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Another factor to consider is that the “highest and best use” of properties located in designated conservation or natural heritage protected areas may be limited due to restrictions on the nature and type of use allowed in these areas. Accordingly, these restrictions will also impact (and likely reduce) the fair market valuation of such properties.[19] The ultimate aim of the Act is to ensure that the property owner is in the same economic position they would have been in but for the expropriation. If the contamination hinders the highest and best use of the property, the fair market value will and should reflect this. However, Simone Group illustrates that owners should not be forced to bear remediation costs that they would not otherwise pay if expropriation did not take place. This is reinforced by section 14(4)(a) of the Act, which prevents the expropriating authority from reducing the property owner’s compensation by the amount of the environmental work required to alter the property’s intended use.

The Act provides an opportunity for the expropriating authority and the property owner to negotiate and agree upon the amount of compensation with respect to the valuation of the expropriated property. Where the parties cannot agree, the matter is resolved through arbitration before the Local Planning Appeal Tribunal (the “LPAT”), which replaced the OMB in 2018.[20] Regardless of what side you are on, expert evidence is crucial to making your case at the LPAT. In particular, evidence of the fair market value of the property must take into consideration all of the environmental factors discussed above where there is actual or potential contamination on site. If the evidence is favourable to your case, it will increase the likelihood of convincing the LPAT to award the compensation you are seeking.

It should be noted that there may be circumstances, such as in property tax valuations and assessments, where actual or potential contamination can benefit a property owner’s position. In such a situation, the reduced market value of the property due to its environmental condition, if established, would reduce the amount of property taxes payable by the property owner.

Therefore, property owners are encouraged to carefully consider the potential implications of initiating a property tax assessment where the environmental condition of the property is in issue. While a revised valuation may result in lower property taxes, it could also affect an expropriation valuation in the future.

[15] Canadian Pacific, supra note 7.

[3] Ibid, s 13(2)(a).

paras 36, 39-40, 43-44 (Div Ct) aff’ing (2012) 106 LCR 101 (OMB) [Simone Group]; Canadian Pacific Railway Company v Windsor (City) (2016), 1 LCR (2d) 280 at para 42 (OMB) [Canadian Pacific]; [8] (1992) 49 LCR 1 [Masae].

[4] Ibid, s 14(1).

[9] Ibid at para 187.

[18] Ibid at paras 50-53.

[5] Di Blasi v York (Regional Municipality), 2019 CarswellOnt 3832 at paras 28 (LPAT) [Di Blasi], citing Farlinger Developments Ltd v East York (Borough) (1975), 9 OR (2d) 553 at para 39 (CA).

[10] 2004 CarswellOnt 3205 (Sup Ct).

[19] Di Blasi, supra note 5 at paras 282, 286, 292.

[11] Ibid at para 52.

[20] Expropriations Act, supra note 1, ss 25-26.

[12] Simone Group, supra note 7.

a cautionary note

[13] Ibid at paras 36, 39-40, 43-44.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

[1] R.S.O. 1990, c E.26 [Expropriations Act].

[2] Ibid, s 1(1).

[6] Expropriations Act, supra note 1, s 14(4).

[7] 1353837 Ontario Inc v Stratford (City), 2019 CarswellOnt 7852 at para 15, Attachment 1 at para 5 (LPAT); 1739061 Ontario Inc v Hamilton-Wentworth District School Board, 2018 CarswellOnt 22692 at para 29 (LPAT) [1739061 Ontario]; Simone Group Properties Ltd v Toronto (City), 2013 ONSC 341 at

[14] Canadian Pacific, supra note 7 at para 42; Mask v Admaston/Bromley (Township) (2016), 2 LCR (2d) 143 at para 15 (OMB) [Mask]; 1739061 Ontario, supra note 7 at para 29.

[16] Ibid at para 42.

[17] Mask, supra note 14.

© McMillan LLP 2020

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THE GREAT OFFICE SPACE REALIGNMENT Ryan Swehla, CCIM, CPM | Principal | Graceada Partners

Office space desirability is changing during the pandemic and certain office types are feeling the effects History tells us that trends come and go relative to the desirability of where people live and work. For example, 1947 was a year remembered for the construction of cookie-cutter houses in North American suburbs. More recently, we have seen the resurgence of urban housing development and a renewed interest in urban dwelling.

Similarly, in 1889, when the first high-rise office building was built in New York City, it marked the beginning of the era of highrise office buildings that has since defined metropolitan skylines. Now, in 2020, with the emergence of a worldwide pandemic, there appears to be a major shift from the era of office skyrise dominance.

Here, we will take a look at three office types: downtown high-rises, suburban lowrises and medical offices, to consider how their value and desirability are changing as a result of the pandemic.

Downtown High-Rises Of the three office types, this is the category that will see the greatest decline in value and tenant demand. With the initial successes of some work-from-home models – perhaps to the surprise of some employers – downgrading to a less expensive area and/or office type will save on costs that were being funneled into now-optional office space for some employers.

High-rises have always offered their fair share of complications, even before the Coronavirus. They are notorious for not being easy to access; parking lots or parking garages can be a nightmare to navigate; and public transportation offers its own challenges, particularly now with its reduced appeal as a means of commuting amid the pandemic and quite possibly afterward. Also, social distancing in highrise offices poses more of a challenge given the high density of people within limited square footage.

This constraint leads to growing problems exacerbated by COVID-19. High-rises have many functional restraints beyond tight hallways, cramped space in general common areas, and tight layouts for desks. Air systems can keep old air circulating around the office, allowing for disease to spread more easily if the filtration system is out of date or faulty. Elevators are an intensified microcosm of this same issue.

Suburban Low-Rises Certain complexities of high-rise buildings may make some tenants reconsider whether or not high-rises are the best option for them. Those looking for more space for employees may turn to secondary markets, which generally consist of lowrises in smaller urban areas or suburban communities, and there is an abundance of options for those seeking low-rises in less densely populated areas in smaller cities, the fringes of big cities, and the suburbs.

As a result, we may see increased demand for suburban low-rises in the short-term (which may result in upward price movement for a period of time).

Subsequently it will likely take time for highrise demand to increase again, particularly

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in the short-term, as businesses look for ways to keep employees safe and consider more affordable, expansive office space in the suburbs.

While high-rises may still attract bigger companies that value in-person work environments and the prestige of being located on prime strips of real estate, businesses renting in low-rises in smaller urban cities or suburbs may appreciate the flexibility of leasing a space away from the density of a major urban market. Typically, there is more land in these areas, allowing for COVID conscious blueprints for new construction or renovations. Moreover, if and when workers move from primary markets to smaller cities or suburbs, businesses may want to meet talent where they live.

If we see an extended shift in demand from large city, high-rise locations, we will likely see some rent readjustment in both locations.

Medical Offices A third office type to consider is medical offices. These range from dental to therapeutic, clinical to surgeon specialists.

The medical field is only anticipated to grow, and the pandemic has accelerated this trend. With the increase in demand for medical offices, there will undoubtedly be an increased need to develop more medical office locations.

To accommodate the demand, new offices are being built and will continue to be built into the foreseeable future. The need for these commercial spaces is expected to surge as Canada’s population grows older, according to The Globe and Mail.

During the pandemic, low-rise, and specifically single-storey medical offices have the ability to let people wait outside if there are too many people inside the office or waiting room. This is a luxury not afforded to medical offices located in high-rises and/or in crowded cities.

With these three office types in mind, it is important to look at another side of real estate: homeowners and the housing market. Noticing trends in residential real estate gives us a more complete picture.

Take Toronto, for example; in a handful of municipalities outside of Canada’s largest city, housing sales were up more than 40% compared to last year (this is as of the beginning of July 2020), according to an article on Global News. This shows a trend of more people moving to suburban or rural areas, in part because their jobs allow for greater work-from-home flexibility.

And a recent CNBC article points to a short-term trend of more office development in the suburbs. With people moving to suburbs or smaller secondary markets like Windsor – where the average home price has increased by 19% since June 2019 – the desire to shift away from high-rises to suburban offices could continue, also driving up construction demand for more low-rise office space closer to where these people now live.

Some of these short-term office and real estate trends could have long-term ramifications. According to Healthline.com, it takes an average of 66 days to establish a good habit as a routine. With social distancing and mask wearing orders having been in place in some parts of the country for several months now, this might suggest that the COVID mentality will outlive the pandemic. However, those who have stuck with a diet or workout regimen for more than two months only to backslide thereafter know that habits can die quickly. There is always a chance that people’s daily outlook living and working through the pandemic will fade away once officials ease restrictions and we return to some measure of normalcy. For some individuals and businesses, this will be the case. However, enough people have already subconsciously altered how they think and act because of the pandemic (such as moving away from cities on relatively short notice) that it may take longer to return to a pre-COVID-19 mentality – if we ever actually return to one.

The decisions of those businesses and people who change where they work and live may very well impact the desirability and value of office buildings across the country for years to come.

Originally printed in Canadian Property Valuation Vol 64 | Book 3

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RESPONDING TO CHALLENGES TO ASSESSMENTS DURING THE PANDEMIC Joe Regina, M.I.M.A. Director, Research & Advisory Services Municipal Property Assessment Corporation (MPAC)

Earlier this year, Ontario’s province-wide Assessment Update was postponed by the government and it was announced that 2016 base year assessments would remain in place for the 2021 property tax year.

The Municipal Property Assessment Corporation’s (MPAC) mandate is to assess and classify properties in accordance with the Assessment Act and other supporting regulations. While the current COVID-19 pandemic has created global economic and market uncertainty, property assessments in Ontario are retrospective and reflect market conditions as of a specific point in time. Within the current legislative and valuation framework, property assessments for the 2021 taxation year should continue market conditions as of January 1, 2016.

MPAC’s Valuation and Assessment Standards department developed a corporate valuation directive to help assessors respond to requests from property owners, tenants and representatives citing the COVID-19 pandemic as the basis for seeking a decrease in their 2016 base year values for the 2020 or 2021 property tax years. The valuation directive supports MPAC’s legislative obligations and is backed by appraisal industry standards and best practices.

The retrospective valuation date is a key factor to be considered. Consequently, industry standards have been observed for guidance in developing our valuation directive. With respect to the effective date of the opinion of value, industry standards specifically provide guidance regarding claims that property assessments should be adjusted based on market conditions that supersede or are not reflective of the valuation day.

Since recent events affecting real estate markets such as the COVID-19 pandemic have occurred more than four years after the legislated valuation day and industry standards recommend that hindsight or after-the-fact evidence not be used unless the subsequent data is consistent with data as of the effective date, the assessment of real property for the 2020 and 2021 property tax years must reflect the market conditions as of the legislated valuation day of January 1, 2016.

It is worth noting that if real estate markets were appreciating rapidly at this time, MPAC would respond similarly by referencing market conditions in and around the valuation day of January 1, 2016, and would not update values to reflect the increasing market.

Any impact the COVID‐19 pandemic may have on the value of a property today was not in effect at the time of the legislated valuation day (January 1, 2016). As a result, current market conditions will not be considered for the 2020 and 2021 property tax years.

MPAC staff continue to monitor the market in preparation for the Government’s announcement of Ontario’s next provincewide assessment update. Any changes in market conditions will be considered in future assessment updates.

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IN MEMORIAM The IMA would like to recognize the passing of two important members of the IMA community.

KEN FAGAN 1947–2020 Ken was always a strong supporter of the Institute of Municipal Assessor and was a member for over 50 years. Ken joined the institute in 1969 with the A.I.M.A. designation and was elevated to the M.I.M.A. designation in 1972. He was Conference Chairman for the IMA Annual Conference three times, in 1991, 1995, and again in 2002. Ken was the recipient of the W.J. Lettner Outstanding Member Award in 2002 and was awarded the M.I.M.A. (Life) membership status in June 2014.

Ken truly loved the assessment profession and the people involved in it. He remained close to many former colleagues that he considered good friends until his final days.

Ken passed away after at home with family after a long battle with leukemia, leaving behind his wife Lana, sons Justin and Ryan and their families.

ARTHUR FOREST (WOODY) THOMPSON 1930–2020 Born in Hamilton Bermuda, Woody immigrated to Canada in 1945 and settled in Dundas, Ontario. He started his career in Property Assessment in Dundas in 1953 and eventually became Assessment Commissioner in Hamilton/Wentworth, Toronto and Halton/Peel, as well as Head of Quality Control for the Province of Ontario.

Beloved husband and best friend to Gwen for 63 years. Much loved father of Michael, Heather, Mark, and their families.

The family would like to express our gratitude to the staff at Hamilton General Hospital for the care given to Woody and the compassion shown to their family.

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NAVIGATING ETHICAL DILEMMAS (CPD OFFERING) LAUNCHED In early December, the IMA launched the latest installment of the IMA’s Ethics CPD Series, supported by the IMA Code of Ethics and Professional Standards.

Drawing from six ethical scenarios originally published in Insti-News’ Ethical Corner series, this course navigates the nuanced topic of ethics in a thought-provoking and engaging self-paced format. Participants will be asked to reflect on their own ethical responsibilities as an IMA member and refresh their knowledge of the Code.

Hosted on the IMA Learning Centre (Moodle), Navigating Ethical Dilemmas is completed 100% online in a self-paced format, giving participants the flexibility to learn on their own schedule from the safety and comfort of home. Move through each course at your own pace to get the most out of the material, with the ability to pick up right where you left off on the next log in.

Mandatory Requirement for CPD Cycle 4 This course is mandatory for all A.I.M.A. Designated and M.I.M.A. Accredited members as a requirement for CPD Cycle 4 (April 1, 2020 – March 31, 2022).

CPD Credits: 3.0 Learning Credits Costs: $50 (Members) / $75+HST (Non-Members) Register Now: Member / Non-Member Click here for additional details.

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2020-21 IMA SPONSORS THANK YOU TO THE FOLLOWING SPONSORS, WHOSE GENEROUS DONATIONS SUPPORTED THE IMA SCHOLARSHIP FUND

DIAMOND

PLATINUM

SILVER

BRONZE

SUPPORT THE NEXT GENERATION OF PROPERTY ASSESSMENT PROFESSIONALS WITH A TAX-DEDUCTIBLE DONATION TO THE IMA SCHOLARSHIP FUND. LEARN MORE ABOUT THE AWARDS AND VIEW PAST RECIPIENTS HERE 24

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INSTITUTE OF MUNICIPAL ASSESSORS | DECEMBER 2020