- Link to Toronto Star and Narwhal articles
- Link to sample resolution and backgrounder
- RESCON, a construction industry association, initiated a legal challenge against the City of Toronto in November of last year. This challenge was filed in the Superior Court of Ontario rather than the Ontario Land Tribunal
- The purpose is to challenge municipal site planning authorities' and the municipal ability to enforce and implement green standards.
- It's crucial to note that while Toronto is the defendant, the implications of the court's ruling could affect municipalities throughout Ontario, as all green standards are governed by the same legal frameworks within the Municipal and Planning Acts.
- The court process could go in multiple directions. If the direction is towards bringing in expert testimony, then the process will be a longer process likely involving extensive legal arguments and potential testimonies from multiple stakeholders.
- If the court process goes straight to a judge's decision without expert testimony, then the results of the legal challenge will be a much shorter time frame.
- If the court determines that municipalities do have the authority to implement green standards, it will reinforce the existing regulations and potentially bolster municipal environmental initiatives within urban planning.
- Conversely, if the RESCON's arguments succeeds, it could severely limit municipalities' abilities to enforce such standards, significantly restricting planning abilities. This would have significant ramifications for various green initiatives, including infrastructure that promotes sustainability, such as bike paths and urban greener, etc…..
- RESCON has been trying to gain provincial support for removal of municipal green standard authorities and that is another way this can play out. In that the court challenge is part of a larger strategy to gain provincial support for the removal of municipal green standard authorities. So, there is the need to keep track of the court case as well as the provincial advocacy being undertaken by RESCON to gain provincial support for the removal of municipal green standard authorities.
- Municipalities have been asking for the Province to align with the federal National Model Building Code and advance a step code like the one in British Columbia. The BC step code has both energy and greenhouse gas intensity metrics that has a timed phasing towards net zero emission buildings.
- There is no doubt that we need to work on scaling up the decarbonization of existing buildings since 80% of the buildings around in 2050 are already built and will need to be retrofitted. Building emissions standards are being used in other jurisdictions further ahead on their decarbonisation journey than Ontario to scale up retrofits and reduce the risk of stranded assets. But there is the need to build it right at the most cost-effective time to do so (at the time of construction) and that is what green standards have been trying to achieve. Affordability is not only about upfront capital costs but also about long term operational costs and reducing the risk of stranded assets.
- For example, fossil fuel infrastructure brought to new developments is paid for by the fossil fuel rate base and paid back via delivery charges on customer bills. However, a customer would need to be on the fossil fuel rate base for at least 40 years to pay back the rate base for the subsidy they received by not having to pay for infrastructure costs at the time of construction like other infrastructure costs (that aligns with the approach that growth should pay for growth, rather than be subsidized by the rate or tax base).
- For example, in the case of a low-rise development it is likely that when their fossil fuel furnace comes to its end of life it will be replaced with an air source heat pump allowing that building to remove itself form the fossil fuel rate base. This increases the risk that a smaller and smaller pool of customers will have to pay for the infrastructure costs that have to be subsidized by the rate base. This poses a stranded asset risk, as well as an equity issue in that those most able to electrify will leave the fossil fuel rate base leaving a smaller pool of customers to pay for the fossil fuel infrastructure costs, along side Enbridge's guaranteed profit margins.
- This risk was one of the motivating factors for the OEB decision to remove the fossil fuel subsidy for low rise new development and require developers to pay for the costs of fossil fuel infrastructure just like other infrastructure provided to new developments.
- OCC members were asked about the possibility of having a letter endorsed by OCC members sent to the RESCON president and board of directors. A draft letter has been developed and was reviewed at the meeting. However, OCC members indicated that individual endorsements are challenging for them as many municipalities have rules related to individual endorsements from council members identifying themselves as a council representative.
- Therefore, the more appropriate route would be council resolutions. CAP will update the RESCON letter to turn it into a backgrounder and provide a sample resolution that will be reviewed at the February meeting for council members to then bring in front of their council.
- Historically, when Bill 23 was introduced, there was significant concern that it would eradicate green standard planning authorities within municipalities. However, the government made amendments to Bill 23 that allowed for continued enforcement of green standards, indicating provincial acknowledgment of municipal green standard authorities.
- Following Bill 23's passing the then Minister of Municipal Affairs and Housing Steve Clark informed municipalities with green standards in place that the province was planning to align with the national Model Building code and advance a green standards bylaw.
- Following the greenbelt scandal and the resignation of Steve Clark the green standards by law has made no progress. There were also no energy efficiency improvements in the update of the OBC that took place in 2024 resulting in there being no energy efficiency improvements in the OBC in a decade. In addition, one of the key learnings from the BC Step Code is that there is the need to have both energy and greenhouse gas emissions metrics within codes to achieve affordability and decarbonization goals. Energy metrics are not sufficient to achieve climate goals and net zero energy that uses fossil fuels still has significant greenhouse gas emissions despite achieving net zero energy goals.
- There is no doubt that there is a housing affordability crisis but throwing out green standards and efficiency and emissions efforts will not address housing affordability and will increase risks related to increasing operational costs and future retrofit costs.