Saturday, June 17, 2017

Changes to the OMB — meh

In case you missed it … on May 30, 2017 Minister of Municipal Affairs Bill Mauro introduced the government’s long-anticipated changes to the Ontario Municipal Board.  Bill 139, the Building Better Communities and Conserving Watersheds Act, 2017, combines OMB/planning system-related changes and changes to the Conservation Authorities Act, which has also been under review. [1]

The province says: “If passed, the proposed legislation would overhaul the province’s land use planning appeal system.”

Personally the overhaul leaves me underwhelmed.  (And that’s not a bad thing!) [2]


Let’s look at the proposed changes to the OMB and what this means for heritage.

Not to put too fine a point on it, much of what the government is proposing looks a lot like smoke and mirrors — changes that are designed to appease the mostly Greater Golden Horseshoe municipal politicians who rail against the (as they see it) unelected, anti-democratic, unaccountable, cumbersome, unfair, etc., etc. body that has had a major role in the province’s land use planning system since 1906.  But changes without a lot of substance.



Take the change of name — out with O-M-B, in with L-PAT, Local Planning Appeal Tribunal.  So imaginative.  For more than a decade Ontario municipalities have had the ability to set up a “local appeal body”, instead of the OMB, for certain local land use planning matters, although no municipality has so far done this. [3]  Well, let’s just make the OMB sound like it’s that kind of body — one concerned with your local issues.  Of course, it will still be a provincially-appointed board that hears appeals mainly on municipal planning issues.  So this is a symbolic gesture.

More important would be changes to the LPAT’s jurisdiction and powers vis-à-vis municipal decisions.

Here too there seems to be less than meets the eye.

First of all, there’s the deference the appeal body must give the decision under appeal.  Currently the legislation says the OMB, in making a decision “that relates to a planning matter”, “shall have regard to” the decision of the municipal council or approval authority.  As proposed, the shall-have-regard-to mandate stays, except instead of applying to decisions on any “planning matter” it applies to 14 specific types of decision, identified by a list of subsections of the Planning Act.  This does (yawn) make things more definitive. [4]



Moving on … a new limitation? threshold? is introduced for Official Plan and Official Plan Amendment appeals.  The Planning Act will say that an appeal may only be made on the basis that a part of the plan or OPA:
  • is “inconsistent with” the Provincial Policy Statement, or
  • “fails to conform with or conflicts with” a provincial plan, like the Niagara Escarpment Plan or the Plan for the Greater Golden Horseshoe, or
  • “fails to conform” with an upper-tier plan where there is one. [5]
Would-be appellants must provide an explanation with their notice of appeal as to why they think this inconsistency/nonconformity threshold has been met.

This is reinforced by directing the LPAT to dismiss an appeal unless it “determines” that the case under appeal does not meet the required threshold.  In which case: The LPAT is directed to refuse to approve/uphold that part of the plan or OPA, and notify the municipality that it “is being given an opportunity to make a new decision in respect of the matter.”

So the municipal council will get a second chance to get it right (or wrong). If the new decision is appealed and the LPAT again determines that the threshold has not been met, at that point it can substitute its own decision.



The introduction of a clear-cut threshold for appeals may seem like a big deal, but it is really just doubling down on existing requirements.  Hello, do we not already have a policy-led planning system?  Section 3 of the Planning Act already says that planning decisions have to be consistent with the PPS.  Legislation establishing provincial plans already requires that municipal plans must conform to them.

Arguments about consistency with the PPS are the bread-and-butter of most OMB appeals.  Although the onus on the person making the appeal to show that the municipal decision is inconsistent or noncompliant will be more explicit, it’s hard to see how this will really change things (beyond making the process a little more cumbersome).

A sceptic might predict that the new requirements about consistency and conformity will not scare off a lot of would-be appellants — or the LPAT itself — from challenging municipal planning decisions.

Whatever you think of the idea, the innovation of giving municipalities a second kick at the can will probably spare some councils lost pride.  Better to modify your own decision than suffer the ignominy of having it overruled by a provincial tribunal!

As for heritage … rest assured that the amendments to the Ontario Heritage Act included in the bill are purely of the “consequential” kind — changing references to the OMB to LPAT and board to tribunal. So appeals to the OMB, er, LPAT, on heritage conservation districts, refusals to approve building demolition, etc., are all untouched.

And for heritage-related appeals under the Planning Act, well, there will still be the same arguments about consistency with the PPS and how to reconcile of find the right “balance” between the cultural heritage policies and the growth and intensification polices. [6]

La plus ça change…



Note 1: The bill is here.

Note 2: I was not a fan of some of the ideas the government floated in its discussion paper last year. See OHA+M from December 4, 2016: “The OMB under review (again)”. There are some good things in Bill 139 — the creation of the Local Planning Appeal Support Centre, for one — but the focus today is on the changes to the OMB’s jurisdiction and scope.

Note 3: See section 8.1 of the Planning Act.

Note 4: As mentioned in the December 4, 2016 post, the “have regard to” injunction seems superfluous if not disingenuous, since of course an appeal body would carefully consider any decision it was being asked to overrule.

Note 5: See subsection 6 (1) of Schedule 3 of Bill 139. With respect to appeals concerning zoning changes, subdivision plans, minor variances, consents and site plan control, there is no substantial change to the OMB/LPAT’s jurisdiction and powers, although appeals on the last three can be given to a local appeal body if municipalities choose to do so.

Note 6: From a heritage perspective there is one potentially worrisome thing in the bill’s new prohibition on appeals of development that supports the use of transit. See subsection 6 (6) of Schedule 3 of the bill. This could potentially take away a community’s appeal rights in situations where it can be argued that a proposed development projects supports transit infrastructure.

Saturday, June 3, 2017

Wish list changes to the OHA, part two … or, two-way demolition appeals?



Ka-boom!  Another heritage building bites the dust.

Or, in the case of the Gore Park buildings in Hamilton, are about to.  This because Hamilton city council earlier this year approved the demolition of these designated buildings … and despite an unprecedented on-line petition signed by over 1200 people asking them not to (and calling on culture minister Eleanor McMahon to intervene). [1]

What if even one of those people had appealed the council’s decision under the Ontario Heritage Act?  Of course, no such appeal right exists.

Could it?  We’ve been looking at possible changes to the OHA — and this is one of the biggies!

There is a strong argument that third parties — members of the public — should be able to appeal the decision of council to approve a demolition.

Since the overhaul of the OHA in 2006, the owner of designated property has had the right to appeal the municipality’s refusal to grant approval for demolition to the Ontario Municipal Board.  Previously there was no appeal … because council did not have the power to say no to demolition requests.  (Technically, it did, but a refusal only delayed the owner’s right to demolish for 180 days.)

With the strengthening of demolition controls — “no means no” — naturally came the question of appeal rights.  And to which provincial tribunal.  The Ontario Municipal Board and the Conservation Review Board were already in the OHA in other ways.  For a number of reasons it was decided to go with the OMB on demolition appeals. [2]

But as for extending the right of appeal to third parties aggrieved by the municipal decision to give the green light to demolition, it was felt this had not been adequately explored and discussed with stakeholders.  There was a sense that it might upset the development industry whose support for the legislation (tepid at best) was important for securing its passage.  Put another way, the provincial government in 2005 was attempting to juggle a number of competing interests and new public rights of appeal seemed a stretch too far.

In 2017 this deserves another look.

The starting point when analyzing policy changes of this sort is to see how comparable or analogous situations, if any, are handled in the same statute.

Let’s begin with the process for alterations to a designated building.  How does the OHA treat appeals in this case?  Here we get into the difference between a review and a binding appeal.

True to its name, the Conservation Review Board reviews municipal (and some other) decisions.  If you (the owner) don’t like the municipal decision on your alteration application you can “appeal” to the CRB for a hearing and report, with the municipality making the final decision. But only you can have the matter put to the CRB; third parties who don’t like the municipality’s decision (approving a major alteration, say, such as a façadism treatment) can’t.

So while the appeal body and the nature of the appeal (review versus binding appeal) differ, we can say that the relatively new process for demolition appeals is much like the longstanding process for alteration appeals.  No third party involvement.

But what if the demolition approval and appeal process is really more akin to another process in the OHA — de-designation.

For something that (fortunately) does not get invoked much, the Act actually has two procedures.  If you are a municipal council wanting to repeal your designation by-law, section 31 applies.  But if you are an owner wanting to have the designation removed from your property, you can use the application process in section 32.  In either case the usual purpose of de-designating a property is to pave the way for demolition.

Until 2005 the two de-designation sections worked differently.  If the initiative to remove the designation was council’s (section 31), things proceeded very much like the standard designation process in section 29.  Council would have to consult with its municipal heritage committee, where there was one, and give notice to the owner and to the public (and to the Ontario Heritage Trust).  The owner or any person could object to the designation removal, resulting in a referral of the matter to the CRB.

However, if the owner initiated the removal of the designation (section 32), there was no public notice requirement and the “appeal” process was much like the alteration approval process we looked at above.  If the municipality said no, the owner could have the matter referred to the CRB for a hearing, etc.  But if the municipality agreed to remove the designation, nobody else could object.

It was all a bit confusing.  For years certain culture ministry staff would respond to local questions about de-designation procedure, where it looked like the designation (and the building) might be at risk, by deliberately steering people toward the section 31 process.  Why?  Because unlike the section 32 process it had the virtue of giving members of the community the opportunity to object to the designation repeal and to make arguments for keeping the designation in an open hearing in the full public spotlight.  (And in the rare de-designation cases that came before it, the CRB almost always recommended against repeal, which had a big persuasive effect on the council.)

This “loophole” was closed with the 2005 changes to the OHA.  Now if the owner applies under section 32 to remove the designation, and the municipality refuses, the owner can still refer the matter to the CRB — but if the municipality okays the application to de-designate, public notice must now be given and anyone can have the issue referred for a hearing.


So how does this help us with our question about public appeal rights from demolition approvals?

Well, if demolition is more like de-designation than alteration, with comparable public and private interests at play, one could argue it should be treated in a similar way.  Meaning that there should be a public right to object to a decision to approve the demolition of a designated structure.

Support for this argument is found in another section of the Act.  Subsection 34.3 (1) says:

The council of a municipality shall pass a by-law to repeal a by-law or the part thereof designating a property under section 29 if the owner of the property has applied in writing to the council for consent to the demolition or removal of a building or structure on the property and,
(a) the council consents to the application …; or
(b) the Board has ordered that the municipality give its consent ….


This provision essentially mandates de-designation, in whole or in part, where the municipality consents to demolition.  In other words, if you can get approval to demolish the heritage building on the property that was the reason for the designation in the first place, the designation has to be repealed.

If demolition effectively means de-designation, and the de-designation process entails a public right to object, then shouldn’t …?

Convincing?


Note 1: For the sorry story of the Gore Park buildings see OHA+M from January 9, 2017: “For Hamilton’s Gore it’s crunch time!” The petition can be found here: 

Note 2: There's more on this in OHA+M from February 8, 2017: “Alteration, demolition — and partial demolition?” (about nine paragraphs down)

Wednesday, May 17, 2017

Wish list changes to the OHA, part one ... or, bands in the OHA

It’s been over ten years now since the last major amendments to the Ontario Heritage Act in 2005-06.

I am sometimes asked what new changes should be made to the Act.  Well, there are a few...

Let’s start with an easy one.

The OHA should be amended to remove the reference to “[Indian] bands” in the definition of municipality.  This reference is outdated and unnecessary — not to mention culturally insensitive, or worse.

Specifically, section 2 of the OHA defines “municipality” as follows:

“municipality” means a local municipality and includes a band under the Indian Act (Canada) that is permitted to control, manage and expend its revenue money under section 69 of that Act

Why does the Act do this?

Since the best-known provisions of the Act give municipalities — defined in the wording above as local municipalities — the power to designate heritage property, it is tempting to think that the intention was also to give “Indian bands” the ability to designate property on reserves.

But this is puzzling.  Bands are located on federal Crown land, where the OHA has no jurisdiction.  What’s more, while band councils under the Indian Act are given limited powers to control land use and regulate the construction, repair and use of buildings, the inhabitants of reserves are not the owners of the underlying real property (land), so it is difficult to see how the designation provisions and process could be applied.

I think we can safely say that Indian bands were not included in the definition of municipality for the purposes of heritage protection.  What then?

The clue is in the reference to section 69 of the Indian Act.  That section deals with financial management rather than land management. [1]

The ability to manage its finances would be basic for a band’s eligibility for grants.

Let's look at another OHA definition — the one for “person”: “person includes a municipality”. So, because a municipality includes a band, “person” would also include a band.

Bands would therefore benefit from the powers of the Ontario Heritage Trust to enter into agreements and provide financial support to “persons.”  The Trust can, among other things:

(g) enter into agreements with persons respecting any matter within the objects of the Trust, and provide financial assistance by way of grant or loan to persons who are parties to such agreements for the purpose of,
(i) providing educational, research and communications programs,
(ii) maintaining, restoring and renovating property, and
(iii) providing for the management, custody and security of property (emphasis added) [2]

So if this — grant eligibility — is the rationale behind defining municipalities to include bands, how can it be framed in, well, a more politically correct way?

While the phrase was unknown to the drafters of the 1975 legislation, a contemporary means of bringing bands into provincial legislation employs the term “First Nation.”  “First Nation” can then be included as appropriate in a wider definition of “public body” that encompasses other provincial and municipal agencies (leaving the word “person” undefined).  The Planning Act for example takes this approach.

The OHA definitions should be revised by taking “band” out of the definition of municipality and introducing the term “First Nation”, which would be defined as a band. [3]  With a few adjustments elsewhere, the definition of “person” could probably be dropped.

This is a simple housekeeping change that is long overdue.

---0---

Any pet peeves with the OHA?  Something big you've always wanted changed or a small flaw you've just noticed?  Let me know!  Post a comment below or email danschneider@live.ca.


Note 1: Subsection 69 (1) of the Indian Act says:

69. (1) The Governor in Council may by order permit a band to control, manage and expend in whole or in part its revenue moneys and may amend or revoke any such order.

Note 2: See section 10 of the OHA. As ”persons”, bands potentially could also be assigned easement agreements taken by the Ontario Heritage Trust under sections 22 and 37.

Then there’s Part VI of the Act. Another conceivable, if unlikely, reason for including bands as “persons” is to bring them within the ambit of the province’s archaeological licensing regime. Subsection 48 (1) says: “… no person shall do any of the following unless the person applies to the Minister and is issued a licence under this Part…”.

Note 3: No doubt the good folks at the Ministry of Indigenous Relations and Reconciliation can advise how best to do this.

Saturday, April 29, 2017

Farmhouse loophole to be closed

Near St. Marys, Ontario

A bit of good news for those concerned about our rural heritage.

The provincial government is closing a loophole that allows farmhouses to be demolished without the need to obtain a demolition permit.  A “proposed change” to Ontario’s Building Code (OBC) would finally fix this. [1]

As background, the OBC distinguishes between a “building” and a “farm building.” “Farm building” is defined as “all or part of a building

(a) that does not contain any area used for residential occupancy,
(b) that is associated with and located on land devoted to the practice of farming, and
(c) that is used essentially for the housing of equipment or livestock or the production, storage or processing of agricultural and horticultural produce or feeds.” [2]

The quintessential “farm building” is of course the barn.

The problem arises because of some sloppy drafting way-back-when — or was it a deliberate policy choice?  The OBC says that, “for the demolition of a building located on a farm”, you are exempt from the near-universal requirement for a demolition permit under the Building Code Act. [3]  Since the words “a building located on a farm”, rather than “farm building”, are used, this is interpreted as meaning that the demolition of farmhouses, as well as the demolition of barns and other “farm buildings”, does not require a demolition permit.

Near New Hamburg, Ontario

One might point out that, if a farmhouse was designated under the Ontario Heritage Act, the owner would need the approval of the municipality to demolish the structure.  And where a farmhouse was on property listed under the OHA, the owner would have to give the municipality 60 days notice of their intention to demolish.  So why does it matter what the OBC says?

It matters because of how these heritage controls are administered.

The municipal building department is usually the first point of contact when people want to construct or demolish buildings, and the Building Code Act allows building officials to refuse to issue permits where the construction or demolition would contravene the Act, the OBC “or any other applicable law.”

In the case of a designated or listed property, the OHA is “applicable law”, one saying you need special approval or need to give special notice in order to demolish a structure on the property.  So where the owner applies for a demolition permit the building department would routinely advise them to first get the needed approval or give the needed notice — and would not issue the permit until that was done.

But in cases where the owner doesn’t apply for a permit, because no application is required in the first place … you see the problem.  Technically the law is broken if owners ignore the OHA requirements but the municipality is denied a primary means of enforcing the heritage controls.



Near St. Marys, Ontario

Now most old farmhouses in Ontario are not listed or designated or even identified on local inventories. But even where there is no local recognition whatever, surely they deserve better than being treated as so much refuse, disposable without any local oversight or even record of their demise.

So this change to the OBC — which will narrow the exemption from “building located on a farm” to “farm building located on a farm”, thus excluding farmhouses — is a welcome one. Kudos to the ministries of Municipal Affairs and Tourism, Culture and Sport for making it happen. Cabinet approval of the amendment, part of a package of OBC changes, is expected by the end of next year.

Near Bobcaygeon, Ontario

And now that we’re moving into good weather, what better way to spend a sunny day than driving the backroads of your town or township admiring old farmhouses? While you still can, because they sometimes disappear quickly.

Better still, help out with a farm survey or inventory!


Near St. Marys, Ontario


Note 1: See: http://www.mah.gov.on.ca/AssetFactory.aspx?did=15695. There is an error here. Under “Proposed Code Change” it should say “Revise Sentence 1.3.1.1.(1)(a)
(emphasis added).

Note that unlike the Ontario Heritage Act the Building Code Act has a definition of demolition: ‘ “demolish” means to do anything in the removal of a building or any material part thereof and “demolition” has a corresponding meaning.’ This definition is broader than the accepted interpretation of “demolish” in the OHA; the inclusion of “or any part thereof” would encompass so-called partial demolition, which would be considered an alteration under the OHA.

Note 2: This and other defined terms (in italics) are in Sentence 1.4.1.2.(1) of the OBC.

Note 3: Sentence 1.3.1.1.(1)(a).

Wednesday, April 12, 2017

Probing Bill C-323

The legislation we’ve been following, private member’s Bill C-323, is headed to committee!  But it’s uncertain when that will be.  The Environment committee is still busy with a major review of the Canadian Environmental Protection Act.  The committee is off the last two weeks of April and only has five weeks in May and early June before rising for summer break.

So it may not happen until fall.  In the meantime, we in the heritage community should be thinking hard about what to say to the committee — and who should say it — when they hold public hearings on the bill.

There is no question that the principle of the bill deserves strong support.  The principle being ... that the income tax system should be used to provide incentives for the rehabilitation of heritage property.

That doesn’t mean everything in this particular legislative proposal is fine and dandy.  A too-uncritical stance may not be the best course — either policy-wise or politically.  Now is the time to closely scrutinize the bill’s details.



One person doing just that is Paul King, a past president of Community Heritage Ontario/Patrimoine Communitaire de l’Ontario and a member of the CHO/PCO board.  Until recently Paul was a partner in the law firm Fasken Martineau.

In the current issue of CHOnews, Paul talks about what is in the bill (and what is not). [1] He cites and comments on the issues raised during the Second Reading debate by government MPs, particularly Ginette Petitpas Taylor, Parliamentary Secretary to the Minister of Finance.

What concerns do Liberal MPs have about this bill? On February 10, 2017, in the House of Commons, they argued that:
  • Tax changes should ideally be made as part of the budgetary process so that all options are examined and a balance is struck between priorities. It is critical that new fiscal commitments are only made when they are affordable and the government can do so responsibly.
  • The Bill does not cap the amount property owners can apply for and obtain.
    [Note: The Bill is drafted so that the Minister of Finance has the authority to cap the amounts. For instance, the Minister could prescribe a limit to expenses by using the "prescribed costs" subsection of the rehabilitation expenses definition.]
  • There is a concern that this Bill will not be a benefit for the "middle class”.
    [Note: "Middle class" is a commonly used ill-defined buzzword used by politicians.]
  • The Income Tax Act already contains incentives to encourage donations for the preservation of historic assets.
    [Note: Tax deductible donations are limited in scope and do not, for example, help the owners of private residences or downtown main street commercial properties.]
  • Some property owners will be eligible for the rehabilitation tax credit while their neighbours, who do not own a designated historic property, would not be eligible.
    [Note: This concern does not recognize the cultural value to Canadians generally of rehabilitating historic properties.]
  • The tax credit is just providing an unexpected perk to owners for doing work that they are already obligated to do.
    [Note: Unless a property is subject to a heritage easement, there is no such obligation for an owner to carry out rehabilitation work.]
  • The government will have to assess whether Parks Canada has the resources to meet the anticipated increased applications for historic designation and whether the Canada Revenue Agency is equipped to handle the added administrative burden.

Concluding that "some of these concerns have merit and deserve attention" at committee and that "[others] are dubious," Paul goes on to raise a number of other questions about the bill.

What other concerns about this Bill need to be reviewed by the House Standing Committee on Environment and Sustainable Development?
  • Should there be a clawback of the tax credit or capital cost allowance or perhaps some other mechanism to deal with rehabilitation work that is later undone by neglect, alteration or demolition?  Under some provincial legislation, demolition of designated heritage structures is controlled but this does not apply to national historic sites unless they are provincially designated.

  • Definitions need to be clarified perhaps by adding details in regulations.  For example, rehabilitation expenses do not include costs incurred solely for aesthetic or cosmetic purposes. What does this mean?  Some key heritage ornamentation (such as brackets under eaves, carved gingerbread on gables, or roof cresting) were never functional and solely installed for aesthetic purposes.  Is painting with heritage colours or wallpapering in heritage patterns solely for cosmetic purposes?  Exterior shutters were once functional but are now solely aesthetic, so can  the rehabilitation or replacement of shutters be included as a rehabilitation expense?

  • Is there a way to include heritage properties in heritage conservation districts without also including properties with no heritage attributes?  This issue may already be addressed indirectly in the Bill because any rehabilitation must be carried out in accordance with conservation standards (being the standards and guidelines for the conservation of historic places in Canada adopted and applied by the Parks Canada Agency).  Also, any rehabilitation work must be certified by a professional architect confirming that the work was carried out in accordance with conservation standards.

  • Is it a good idea to leave the judgement call on eligible work to architects? This may be both too broad and too narrow because most architects are not heritage experts.  Perhaps “professional heritage consultants” would be better.  This would include heritage architects but also other heritage experts with appropriate qualifications and experience.

To these questions and concerns, which I share, here is one more.

The rationale for the legislations relies heavily on U.S. and Canadian precedents.  The U.S. model is the Historic Tax Credit, which is only available for properties that will be used for a business or other income-producing purpose.  In Canada, the Commercial Heritage Properties Incentive Fund (CHPIF) pilot had a comparable focus. [2]

This bill goes way beyond these models by making the 20 per cent tax credit available to residential properties as well.  In doing so, it obviously has broader appeal.  But it could undercut one of the strongest arguments for this, or any, tax change — that the program would generate more money for the federal treasury than it costs. [3]

It also greatly increases the number of potentially eligible properties, not necessarily a good thing in the eyes of a government clearly concerned about how wide a net is being cast and the implications in terms of costs and administrative burden.

Don’t get me wrong.  I am the first to agree that we need better, broad-based incentives for the preservation of designated properties.  But by making this bill a vehicle for achieving that, do we risk losing the whole shebang?

What do you think about the finer points of the bill?  Have a closer look here.


Note 1: From “Bill 323: An Act to Amend the Income Tax Act”, CHOnews, Spring 2017, pp. 1-3. The excerpts here are used with Paul’s permission.

Note 2: For more on CHIPIF see OHA+M from December 21, 2016.

Note 3: This is because, as the American experience proves, the return over time on the investment the tax credits stimulate result in increased (taxable!) business income.

Tuesday, March 28, 2017

Bill C-323 clears a hurdle

The Speaker:
I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Environment and Sustainable Development.
~ Hansard, March 23, 2017

By a vote of 150 to 140, Bill C-323, which would create a tax credit for the rehabilitation of historic properties, passed Second Reading in the House of Commons last Thursday. [1]  Wow!

To get this far is quite an achievement for a private member’s bill, especially one with revenue implications.  Peter Van Loan, Conservative member for York—Simcoe and the bill’s sponsor, issued a press release calling the vote “A Victory for Heritage.”

Said Mr. Van Loan: “This Bill represents a historic opportunity to invest in our cultural heritage. It is very exciting that the House of Commons supports our initiative. We’re looking forward to debate in committee.”

The bill now goes before the House Committee on Environment and Sustainable Development for detailed review.  No word on the timeframe for that yet, although the press release says the bill is due for committee discussion “in the near future.”

With a healthy MP presence in the House that afternoon — 292 out of a total of 333 MPs voted on the bill — we get a good sense of where the parties, and most individual MPs, currently stand on the bill. [2]  It’s clear the main opposition parties — Mr. Van Loan’s own Conservatives and the NDP — both support the legislation, at least in principle.  All of the Conservative and NDP members in the House at the time voted for it.  Of the 150 MPs voting in favour, 128 were opposition members. [3]

As for the Liberal government, MPs are split on the bill — 22 Liberal MPs voted “yea”, enough for it to pass, and a whopping 140 of their colleagues voted “nay.”  (With 180 Liberal MPs in total, that leaves another 18 or so Liberal MPs who weren’t there and didn’t vote.  If those MPs had voted with the majority of their party, the vote, and bill, would have been lost.)

During the Second Reading debate most members speaking for the bill cited support for the legislation from their own communities and even quoted from letters they’d received.  There can be no doubt that extensive lobbying for the bill from all parts of the country contributed to last Thursday’s win! [4]



But as the numbers show, there is still a ways to go.  And if the bill ever gets to Third (final) Reading and the vote is whipped — with members required to vote as directed by party leaders — as is likely, there is farther to go still.

Given some of the Liberal MPs' speeches at Second Reading, it’s not surprising at this stage that the two cabinet ministers most closely interested in the subject matter, and who received direct entreaties urging support of the bill (and were copied on most of the MP correspondence), did not vote for it.  Finance Minister Bill Morneau was not in the House at the time. (He was busy selling the budget he’d brought down the day before.)  Environment Minister Catherine McKenna, who would be the minister responsible for implementing the legislation should it ultimately pass, was there — and voted no.

With the bill off to committee, there is time to change minds. Or really just one mind … the government’s.

The Standing Committee on Environment and Sustainable Development has 10 members — six Liberals, three Conservatives and one New Democrat:

  • Deborah Schulte, MP (Lib.) for the Ontario riding of King—Vaughan (chair)
  • Jim Eglinski, MP (Conservative) for the Alberta riding of Yellowhead (vice-chair)
  • Linda Duncan, MP (NDP) for the Alberta riding of Edmonton—Strathcona (vice-chair)
  • John Aldag, MP (Lib.) for the British Columbia riding of Cloverdale—Langley City
  • William Amos, MP (Lib.) for the Quebec riding of Pontiac
  • Mike Bossio, MP (Lib.) for the Ontario riding of Hastings—Lennox and Addington
  • Darren Fisher, MP (Lib.) for the Nova Scotia riding of Dartmouth—Cole Harbour
  • Mark Gerretsen, MP (Lib.) for the Ontario riding of Kingston and the Islands
  • Joël Godin, MP (Conservative) for the Quebec riding of Portneuf—Jacques-Cartier
  • Martin Shields, MP (Conservative) for the Alberta riding of Bow River

Whatever happens later, at least the bill is ensured a favourable reception.  Every member of the Environment Committee voted for the legislation at Second Reading!  (The one exception was Mr. Amos, who did not vote.)  And two of the Liberal members, Mr. Gerretsen and Mr. Aldag, spoke fervently for the legislation at Second Reading.

The role of the committee?  To review the actual text of the bill and to approve or change it.  Usually the committee will choose to hold public hearings.  With a private member’s bill, the practice is that the first witness to appear before the committee is the member — here Mr. Van Loan.  Other witnesses/presenters may be invited to express their views on the bill, including individuals, experts or representatives of organizations that would be affected by the legislation.  Committee members get to question all of these folks.

Will Environment Minister Catherine McKenna appear before the committee?  If so, what will she say?

You can be sure that Mr. Van Loan, while not a member of the committee, will play an active part.  In addition to being the first witness, he can participate in committee discussions. [5]

At committee a bill undergoes close scrutiny.  So it’s high time to probe the details of this landmark policy initiative.  For next time.


Note 1: To check the vote tally and see how your MP voted, here is the link to Hansard for March 23, 2017 (scroll down to Private Members’ Business): March 23 vote.

Note 2: 292 = 150 + 140 + 2 (two MPs abstained in the vote on the bill). There are 338 seats in the House of Commons but five are currently vacant. The robust attendance in the House on March 23 may have been owing to the vote on Liberal MP Iqra Khalid’s contentious Islamophobia motion, which took place immediately after the vote on Bill C-323.

Note 3: Opposition members supporting the bill included several Bloc Québecois MPs and Green Party Leader Elizabeth May.

Note 4: The two Second Reading debates can be found here: first hour and second hour. Scroll down to Private Members' Business.

Note 5: The House rules provide that any MP may attend standing committee meetings, question witnesses and participate in the committee’s public proceedings, although non-members can’t move motions or vote.