Photo by {a href="http://www.flickr.com/photos/ddotg/7052055551/"}DdotG{/a} from the {a href="http://www.flickr.com/groups/torontoist"}Torontoist Flickr Pool{/a}.

If you’ve been paying attention to the battles over urban planning in Toronto over the last year, you may have noticed a slight shift in the debate: while tensions over sky-high towers continue unabated, some of the most notable fights in neighbourhoods around the city are over the more modest “mid-rise” developments—ones in the 5-10 storey range—that have, until now, made up a smaller share of development.

Toronto’s still-relatively-new chief planner, Jen Keesmaat, would like to change that. Keesmaat told reporters last week that she wants to see the City change zoning regulations to automatically allow mid-rise development along Toronto’s “avenues”—a specific list of designated arterial roads, like St. Clair and Danforth, which form the spines of residential neighbourhoods but themselves are already somewhat built up. The goal is to accommodate Toronto’s growing population by increasing density while maintaining more moderately scaled neighbourhoods, distributing some development across several main streets rather than concentrating it only clusters of giant towers. Avenues, in particular, are generally streets that already have infrastructure (most notably, transit), which is what makes them good candidates for this scaled growth.

Officially, this has been one of Toronto’s planning goals for quite some time. One key problem: the City’s own zoning rules don’t currently support that vision.

The problem is a conflict between two key documents: our Official Plan (a big-picture vision, in which a municipality sets out its planning direction and a strategy for managing future growth) and our zoning bylaw, which lay out the specific rules about what a developer is allowed to build at any given location. Paul Bedford, one of Toronto’s former chief planners, distinguishes between zoning and the Official Plan simply: “the Plan is about vision, the zoning bylaw is about precision.”

Zoning determines everything about a building, from the uses it can be put to (residential, commercial, etc.) to its physical shape: its height, how much of the lot can be occupied, how much parking it needs and where on the parcel of land that parking goes, and so on. Despite the vision articulated in the Official Plan—which explicitly calls for growth along the avenues—most of the city, including large portions of those avenues, isn’t currently zoned for mid-rise buildings.

Eglinton Avenue—one of the targets for increased density in Toronto. Photo by {a href="http://www.flickr.com/photos/news46/2381253052/"}Tom Podolec{/a} from the {a href="http://www.flickr.com/groups/torontoist"}Torontoist Flickr Pool{/a}.

This is what Keesmaat is hoping, specifically, to change. The idea is to get to the point where mid-rise construction wouldn’t need to go through the time-consuming zoning application process at all, enabling a developer who wanted to build mid-rise on an avenue to simply apply for a building permit and go, able to construct mid-rise “as of right” (i.e. without needing special permission). “We would essentially take out a whole layer in the process, which is quite time consuming, and for developers quite costly,” Keesmaat told us last week, when we asked for more details about her plan.

This doesn’t mean developers will necessarily build mid-rise (they can always try to ask council for a amendment to build a high rise), but streamlining the bureaucratic process for mid-rise construction is one way of encouraging developers to build the more modest forms. Some avenues have already been “up-zoned,” and Keesmaat would like to see the process streamlined further.

Bedford was Toronto’s chief planner in 2002, and helped write the Official Plan that formally committed the city to development along the avenues. “I totally support what Jen is aiming for,” he told us. “We have to accept the reality that Toronto is growing, and that’s a good thing.”

But wait. If the City’s Official Plan was adopted in 2002, why are we still talking about this in 2012? Why weren’t Toronto’s zoning by-laws synchronized with the Official Plan years ago?

Bedford, speaking with the candor that a former civil servant is allowed (but gets a current one in trouble), says there are a number of reasons why councillors aren’t eager to allow developers more zoning freedoms.

“Councillors love to have the ability to get public benefits out of Section 37 through the rezoning process,” says Bedford, and proactively up-zoning gives away that opportunity. “Also, councillors are key in the rezoning process. They’re kings and queens in that process. And I think they like that.”

Photo by {a href="http://www.flickr.com/photos/lychee_aloe/7054518993/"}Lychee_Aloe{/a} from the {a href="http://www.flickr.com/groups/torontoist"}Torontoist Flickr Pool{/a}.

Keesmaat stresses that if this new process is implemented, residents won’t be cut out of the consultation process entirely. Rather, instead of piecemeal consultations for each individual development—which is what happens now, and how we end up in so many battles about individual building proposals—City staff, councillors, and the community would engage in a consultation process for an entire avenue at once.

Avenue studies aren’t new to Toronto, but this larger-scale approach is something we’re still exploring. The City began conducting one for Eglinton Avenue in 2011: it’s designed to help plan and manage the changes along the forthcoming LRT route. An examination of 20 kilometres along that transit line, the scale of this study is unprecedented in Toronto. It’s this Eglinton study, and the wide-angle lens it brings to city planning, that Keesmaat wants to emulate in other parts of Toronto.

Keesmaat hopes that the corridor-wide Avenue Study process will defuse some of the local antagonism to developers. “I think it’s better for consultation to happen in the context of the study, because you get less parochial interests then with a specific application.”

Mid-rise developers are, predictably, excited about the possibility of a shorter, less onerous process. Shane Fenton, vice-president at Reserve Properties (developer of 109OZ, among other buildings), says the current process actually causes more disruption than a more permissive one would.

“Someone who wants to build six storeys has to go through the same process as someone who wants to build 30,” says Fenton. “A lot of developers look at that and think, ‘why is it worth my time and money’?” Fenton estimates that it takes anywhere from one to two years to get approval for a mid-rise project, and that’s assuming that there aren’t any major disruptions: Reserve’s development at 1960 Queen Street East had its first application filed in April of 2011, was unanimously approved by Toronto-East York Community Council in May of 2012, and will now go to the Ontario Municipal Board on February 5, 2013. (Queen Street East is now the subject of a Visioning Study, a less robust form of examination than an Avenue Study, in part because of the community reaction to Reserve’s and other development proposals.)

There are other obstacles to mid-rise development: there are a limited number of “soft sites,” as Bedford calls them—places that are particularly well-suited to this form of development. While he was still working for the City he and planning department staff estimated that there is room for 120,000 units along our avenues.

Fenton adds that mid-rise buildings, while less disruptive to neighbourhoods than monolithic towers, do come at a premium: units in these buildings are more expensive on a per-square-foot basis, mostly because smaller developers can’t capture the economies of scale that large towers can.

But with planners inside the City and out warning that the earliest, easiest sites for tower development have all been filled, the question may no longer be whether mid-rise is preferable to towers, but whether it’s preferable to nothing at all.

CORRECTION: 4:24 PM As pointed out by a reader, we originally conflated some terminology (regarding zoning variances and amendments) in this article, which we have since corrected.

Rob Ford leaves his office to speak to the press on November 26, the day of Justice Hackland's decision.

(Note: I want to be very clear that I am not a legal expert. Nothing that follows should be taken as advice from someone who has legal training. I’m only an amateur who has studied this stuff closely for most of a year now. I could be wrong.)

So, early next month, Mayor Rob Ford’s conflict of interest case goes to the Divisional Court, where a panel of three judges will decide whether to uphold Justice Charles Hackland’s decision, or overturn it.

Ford’s lawyer, Alan Lenczner, presented four arguments in court during Ford’s stay hearing on Wednesday that he will present to Divisional Court, none of them new to the case. I’m going to dwell on that for a second: Lenczner will not be introducing any new arguments on appeal, which means that there will be no constitutional arguments introduced. This was unlikely anyway, but it closes the door on any appeals to the Ontario Court of Appeals or the Supreme Court of Canada. (The text of the Municipal Conflict of Interest Act gives Ford only one bite at the appeal apple, as it were.) Anyone who suspected that Rob Ford intends to respond to a negative legal outcome by dragging appeals out until the end of his term can breathe easy, because this now seems impossible.

Here’s an analysis of the arguments in his defense, and the likelihood that the Divisional Court will buy them.

Is Ford’s penalty ultra vires?

The first and arguably most important argument is that the original $3,150 that Council ordered Ford to repay was ultra vires: that is, Council didn’t have the legal authority to order Ford to repay the $3,150.

In the City of Toronto Act, section 150 (5) reads:

City council may impose either of the following penalties on a member of council or of a local board (restricted definition) if the Commissioner reports to council that, in his or her opinion, the member has contravened the code of conduct:

1. A reprimand.

2. Suspension of the remuneration paid to the member in respect of his or her services as a member of council or of the local board, as the case may be, for a period of up to 90 days. 2006, c. 11, Sched. A, s. 160 (5).

Lenczner argued at court that the language of the Act should be read restrictively: that is, the Act authorizes these punishments and no others. Council didn’t have the authority to require Ford to pay back $3,150 in donations from lobbyists, says Lenczner, so Ford voting to undo council’s authority can’t breach the Municipal Conflict of Interest Act.

This argument poses two problems. The first is that Ford had 18 months between the original decision to impose the $3,150 penalty and the February 2012 vote that landed him in so much trouble. At no point during those 18 months did he seek any kind of lawsuit against the city to undo its (he now argues) illegal decision. Justice Hackland might have simply dismissed the argument by saying that since Ford didn’t seek recourse through the courts, the argument that the penalty is ultra vires is irrelevant.

Hackland took the more difficult route, which is why this may be the weakest (note: still not very weak) part of his decision. Hackland decided that Canadian jursiprudence does, in fact, empower Council to impose penalties outside of the narrow text of the Act. This has led some armchair City watchers to croon triumphantly that we all owe Rob Ford an apology because the decision is so obviously wrong. I don’t think that’s true, because we’ve seen other recent decisions where the courts have given very broad leeway to municipal powers, even in seeming defiance of the text of the law.

One recent example is the City’s victory in the so-called Billboard Tax case. The City of Toronto Act would seem, on its face, to make a billboard tax illegal for the vast majority of billboards that were constructed before the law was passed. From S. 110 (1):

A City by-law respecting advertising devices, including signs, does not apply to an advertising device that was lawfully erected or displayed on the day the by-law comes into force…

But the Ontario Court of Appeals decided that the City’s Third-Party Sign Tax was in fact legal, for reasons you can read in the decision. Importantly, while the Court of Appeals found there were a number of reasons to interpret S. 110 (1) other than how the advertising industry wanted, the decision also includes this:

I also agree with the submission that the powers conferred by the City of Toronto Act should be read in a generous fashion so as to enable the City to meet the needs of its residents and to provide them with good government. [emphasis added]

Since the Supreme Court declined to hear the Billboard Tax case, we can say that it’s settled law. It’s important to note here that’s it’s not direct precedent and Hackland doesn’t cite it. But that’s kind of my point: Hackland didn’t invent the broad, permissive powers of municipalities in his decision. They’re everywhere in municipal case law, sometimes even in cases where they seem to contradict the stated text of law.

For more sure-footed legal arguments, we can look at a case Hackland did cite: Nanaimo (City) v. Rascal Trucking, in which the Supreme Court of Canada ruled:

In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the “benevolent construction” which this Court referred to in Greenbaum, and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate role of municipal bodies as community representatives.

Considering the amount of text in the City of Toronto Act given over to accountability and offices to ensure accountability—remember, the Act was passed in the aftermath of the MFP scandal and the Bellamy Inquiry—it seems difficult to argue that the City’s power to enforce its Code of Conduct should be read as narrowly as Ford needs it to be, if he’s going to prevail. If Lenczner’s ultra vires argument succeeds, council could not even compel an apology from someone who violated the code of conduct, or even remove them from their committee chair.

The ruling also mentions Rizzo & Rizzo Shoes, where the court cited:

…a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences.

Since it would seem to be an “absurdity” to argue that council can dock a member 90 days pay but not compel an apology, it’s certainly not obvious that Hackland’s decision will be overturned on this count.

Is the Municipal Conflict of Interest Act incompatible with the City of Toronto’s Code of Conduct?

This was the second argument Lenczner provided at court on Wednesday, and it’s arguably the weakest of the pro-Ford arguments. Lenczner argued on Ford’s behalf that the MCIA was designed to handle matters like land-use planning, and not a Code of Conduct violation. The problem for Rob Ford is that the Municipal Conflict of Interest Act is engaged, as Hackland put it (quoting the act):

Where a member, either on his or her own behalf or while acting for, by, with or through another, has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council or local board at which the matter is the subject of consideration.

Hackland responds to Lenczner’s arguments pretty simply:

…the MCIA means what it clearly says and that there is no interpretive basis for excluding the operation of s. 5(1) from municipal Code of Conduct matters.

Which isn’t to say that he’s comfortable with the law. He notes that it may very well need reform for reasons that have been discussed to death—namely, the nuclear-level penalty. But with little ambiguity in the text—and with little reason (since he dismisses the ultra vires argument) to believe Code of Conduct matters should be excluded, the MCIA and the Code of Conduct clearly work together, not separately.

Was the amount of money insignificant? Was this an error in judgment?

I’ve dealt with these arguments in my previous post, so I won’t repeat myself here, but I will note that Lenczner made an argument on Wednesday that, if repeated before the panel of Divisional Court judges, would seem to be strange. (At least, strange to me.)

According to Lenczner (and elaborating on an argument he made at trial), Ford spoke and voted on his penalty because it was a matter of principle. On Wednesday, Lenczner told the judge “Mayor Ford would’ve made the same speech whether $5 was involved or $500…For him it was a matter of principle.”

This would seem to undermine the plain reading of the “inadvertence or error of judgment” defence. (Ford’s “error of judgment” defence actually amounts to more of a “Ford never read the law and had his own definition” defence.) And while it buttresses the idea that the amount of money was insignificant, it undermines the argument that it wasn’t swaying Rob Ford’s judgement.

In short, in the context of Hackland’s ruling, this argument sounds like kind of an own-goal. I’d also note that what Lenczner described as a matter of principle, Hackland described as:

…a stubborn sense of entitlement (concerning his football foundation) and a dismissive and confrontational attitude to the Integrity Commissioner and the Code of Conduct.

But of course the reason we have appellate courts is because sometimes lower courts get it wrong (though Hackland does not have a reputation for such). And Divisional Court may feel slightly more free to read down certain terms in a way that could benefit Ford. And they might find a more narrow reading of “insignificance” to be the correct one. And the law has some legitimately unsettling parts!

I expect that Rob Ford will lose on appeal, though I will happily concede his chances (so far) seem to be better than they were in front of Hackland, without actually being terribly good—though we’ll have a bit of a better idea after we see it in court.

Postscript: No, Wednesday’s stay wasn’t a victory.

Contra some very stupid writing today, Rob Ford was never likely to be denied a stay. Further, you can’t argue that it’s a victory for Ford without it also being a victory for his critics, since they agreed on the need for a stay.

The Supreme Court’s rules for issuing a stay of a decision are the same as those governing injunctions. Those rules are set out in the 1994 RJR-MacDonald Inc. v. Canada decision. The test for whether a stay will be granted is pretty simple, and Ford easily clears all three tests:

One: Is there a serious question to be tried? This is the easiest hurdle. In the words of the Supreme Court:

Unless the case on the merits is frivolous or vexatious, or the constitutionality of the statute is a pure question of law, a judge on a motion for relief must, as a general rule, consider the second and third stages of the Metropolitan Stores test.

Ford’s appeal isn’t frivolous or vexatious. He’s obviously entitled to an appeal, even in a case (like this one) where I think the original decision was clear and hard to argue.

Two: The applicant has to demonstrate irreparable harm if the decision isn’t stayed. Here, Ford clearly has a strong case: if the decision wasn’t stayed, city council is required to declare his seat vacant and start the procedure for choosing his successor. Council can’t offer to un-vacate his seat after it has done so, so the irreparable harm argument is pretty clear.

Three: Finally, the applicant has to demonstrate that the balance of public interest is met by an injunction. This too is a pretty clear argument to make: if Hackland’s decision wasn’t stayed, but the Divisional Court overturned it, then Toronto could have started the proceedings to vacate Rob Ford’s seat just in time for the Divisional Court to call off the election. It’s better for the city to wait until the appeal is exhausted.

While there are some arguments you could make against any one of these points, Clayton Ruby did not argue any of them in court because Clayton Ruby does not oppose a stay. To argue that this was a substantial legal victory for Ford (instead of a non-event) you have to be either willfully dishonest or willfully stupid.

Rob Ford during city council's transit debate in February 2012.

This morning at 8:10 a.m., Mayor Rob Ford made a rare appearance on the FM side of the radio dial, speaking with Metro Morning‘s Matt Galloway about what has happened so far at council this week, and about Ford’s Summer of Scandal more broadly. In their discussion, Ford made a number of factual claims to bolster his arguments about which way the city is going. Let’s take a look at the things he said, shall we?

On what to do with the proceeds from selling Enwave…

Claim: “We have to finish buying the streetcars. They cost about $700 million to finish the purchase, and we’ve got approximately $200 million to go.” (0:40)

The words “have to” are doing a lot of work in this sentence. Of course the City will have to pay for the new streetcars. But like most capital contracts, the obligation in this case is spread out over a number of years. Some payments have been made; more will be made each year running at least through 2018, as the City takes possession of the cars in stages. There is no immediate bill due on the streetcars that council cannot meet.

Given that the mayor acknowledges that about 70 per cent of the money has already been found, the argument at council yesterday (which will now continue at Budget Committee) was over whether to spend some of the Enwave proceeds on more immediate concerns, like the maintenance backlog at Toronto Community Housing Corporation (TCHC) or water repairs in Scarborough.

Ford acknowledges in the interview that the money may well be spent on TCHC, despite his wishes.

On the Jarvis bike lanes…

Claim: “Obviously, the congestion in this city, as you know, Board of Trade came out and said this costs $6 billion a year. We have to get traffic flowing. All we did now was move the bike lanes from Jarvis over to Sherbourne.” (2:15)

This is true, the Toronto Board of Trade does say this: congestion cost the GTA $6 billion in 2006, and the figure is headed toward $15 billion in 2031 if nothing is done. But the mayor is referring here to a justification for removing the Jarvis bike lanes, while the Board of Trade has usually taken the economic threat of congestion to mean that we need more transit spending and even congestion charges. (More on that later.) It’s not obvious that confirming the decision to remove the Jarvis bike lanes yesterday will substantially ease congestion on the 401.

Claim: “I don’t know where you’re getting that information from; we were told seven to 10 minutes.” (2:45)

Here, Ford is referring to the delay for car drivers on Jarvis as a result of installing the Jarvis bike lanes. Those of us who were at council yesterday heard City staff (in the person of the acting general manager of Transportation Services, John Mendes) tell councillors that while the initial delays incurred by the bike lanes were substantial, they were reduced to two minutes with some changes to signalled intersections. A 2011 City report clearly stated that the morning-rush-hour commute had increased by two minutes, with a three to five minutes increase in the evening [PDF].

On the City budget…

Claim: “By the end of my term I can say that gap I inherited, $750 million, is down to next to nothing; we’re going to have a zero deficit in two years.” (3:55)

Municipalities in Ontario are forbidden from running a deficit. No council in the amalgamated city’s history has run a “deficit” the way it’s understood at the provincial and federal levels of government, or by ordinary speakers of the English language. It’s not clear, but Ford seems to be referring to “opening pressure” once again to explain his policies. Other writers have explained at some length why this isn’t a particularly productive or accurate way to describe the city’s fiscal situation, but the short version is that conservative projections in January don’t always materialize in disaster in December.

On transit, and how to pay for it..

Claim: “I don’t support any of them right now. I’m not a tax-and-spend type of politician.” (4:30)

This is true. Rob Ford does not support taxes. Zero Pinocchios. It does, however, raise the question of what Rob Ford thinks is the appropriate way to deal with that $6 billion congestion cost he mentioned whole minutes ago. If he thinks Toronto can ease congestion simply by tearing up bike lanes, the bad news for everyone is there aren’t enough of them to matter. So what does he think we should do?

Claim: “I think all levels of government have to sit at the table and find a solution. But to say just the City of Toronto pay for it or the province or the feds, that’s not how three levels of government works…until we get all our revenue tools on the table, which I think there’s a report coming next month or the month after, then we can explore it.” (4:36)

The report to which the mayor is referring seems to be this one, heading to the mayor’s own Executive Committee next week. It’s the very first item of business. It suggests a range of taxes, from road tolls, income taxes, and a sales tax to the more pedestrian kinds of municipal revenue like development charges and a land-transfer tax—the exact measures Ford rejected seconds earlier in the interview.

In fairness to the mayor, he’s not the only one hoping Queen’s Park and Ottawa can actually be coaxed in to providing sustainable, dedicated transit revenues.

Claim: “Say you’re going to put back the car tax? No, I’m not going to support the car tax. Tolls? I’m not going to support tolls.” (5:27)

Clarity, at last! For the record, that’s about $1.8 billion a year of revenue that the mayor has ruled out. City staff estimate that the GTA region needs about $2 billion on top of existing spending. So we have to look elsewhere, it seems.

On the knucklehead stuff…

Claim: “People understand a lot of those issues were political that I was dealing with. Let’s call a spade a spade here: the NDP at council want to continue spending and the Liberals and Conservatives don’t.” (7:00)

This is Ford’s defence of the serial controversies that he’s faced over the summer, ranging from having to testify in court over potential violations of the Municipal Conflict of Interest Act, to using City resources to help with the football teams he coaches, to the most recent report from the ombudsman’s office that the mayor’s office broke the public-appointment process at City Hall.

Neither Ford nor I are mind-readers, but it’s fair enough to say that his critics at council have different political objectives than he does (which is why they keep voting against him, albeit not often enough to save the Jarvis bike lanes). But the idea that the ombudsman, the integrity commissioner (from whom his conflict of interest troubles originally sprang), the Toronto Star, the Globe and Mail, and Clayton Ruby all have a plot to get the mayor is the kind of thing that you could only believe if you subsisted entirely on a diet of Toronto Sun online comments.

Claim: “According to a lot of people, I’m doing a good job.” (8:25)

The latest Forum Research Poll shows Ford’s approval at 42 per cent [PDF], where it’s been (with little change) for a year now. His disapproval is 58 per cent, and is similarly stable. In a city of 2.5 million, 42 per cent is legitimately “a lot of people,” but it’s perhaps not a number on which the mayor would like us to dwell.

On where the city is heading…

Claim: “You have to tell people the City of Toronto is open for business…. No one’s gonna come if you have a filthy city; no one’s gonna come if it’s not a safe city.” (9:55)

This will shock the NDP’s pro-filth, pro-danger caucus at council if they can be distracted from eating babies on sandwiches of taxpayer-kneaded bread.