Now that two provincial governments have taken steps to streamline municipal decision-making on priority issues, maybe it's time for municipal governments to consider whether, in the public interest, they themselves should examine ways to streamline other municipal processes.
In both Ontario and Nova Scotia, provincial governments have dramatically changed the balance of power, ensuring that, on a limited range of priority issues, public consultations and appeals are eliminated in favour of timely decisions and speedy execution.
Ontario made its change by, in narrow circumstances, giving a number of mayors sweeping executive power on matters deemed of urgent importance. In Nova Scotia, the provincial government inserted itself to ensure that, on major housing development matters in Halifax, city council, and the process of public consultation and possible appeals, were sacrificed in favour of quick decisions made by a special task force to bring more housing to market more quickly.
It's unclear whether these provincially-imposed changes are part of a permanent "new normal" altering the traditional power balance or whether these actions are stopgap measures with only short-term implications. It's also not clear whether these bold provincial intrusions into municipal decision-making will have the desired outcome.
Overview of Legislative Change
Two years ago, the Nova Scotia government passed the Housing in the Halifax Regional Municipality Act (the "HRM Act"). The HRM Act established a new body, (the "Housing Task Force"), to review development applications in designated special planning areas. Decisions of the Housing Task Force are binding on the municipality, not subject to appeal and not subject to the same public participation requirements of typical municipal planning decisions.
More recently, the Ontario government passed the Strong Mayors, Building Homes Act, 2022 (the "Strong Mayors Act"), granting extraordinary powers to the mayors of more than two dozen designated municipalities that have agreed to advance provincial priorities and, in particular, to move quickly to provide housing. The relevant legislation allows the head of council (the "mayor") to sidestep development restrictions to speed up new housing construction.
Historically in Canada and the United States, municipalities used a "weak mayor" form of government where the mayor has only one vote in council. Provincial actions, especially in Ontario, have greatly increased the mayor's power in designated municipalities. Those mayors are now "strong" with a great deal of independent authority.
The Ontario legislation — the Strong Mayors Act, which added Part VI.1 to the City of Toronto Act, 2006, and the Municipal Act, 2001 (the "Acts") and includes complementary amendments to the Municipal Conflict of Interest Act, and the Better Municipal Governance Act, 2022 — grants significant additional powers to Ontario mayors.
In fall 2022, the Government of Ontario granted the mayors of Toronto and Ottawa strong mayor powers. Since then, the list has been extended, effective July 1, 2023, to an additional 26 of the fastest growing cities and towns in Ontario.
Some of the strong mayor powers only relate to provincial priorities, namely:
- building 1.5 million new residential units by December 31, 2031; and
- constructing and maintaining infrastructure to support housing, including transit, roads, utilities, and servicing.
While the current thrust is related to housing, the current or a future government might impose different or additional priorities on mayors using this legislation, further strengthening the mayor's ability essentially to act by decree.
Comparison of Strong Mayor Powers to Nova Scotia's Municipal Framework
Below, we compare the most important changes to the powers of Ontario mayors to existing powers afforded to Nova Scotia mayors under the Municipal Government Act and the Halifax Regional Municipality Charter (referenced collectively below for convenience as "MGA").
- Directions to Employees
The Strong Mayors Act allows the mayor to direct municipal employees to undertake research and advise the mayor and municipal council on municipal policies and programs.
Nova Scotia's MGA prescribes that council should communicate with municipal employees solely through the Chief Administrative Officer ("CAO") and that no council member, including the mayor, shall instruct, or give direction to, either publicly or privately, a municipal employee.
- Transfer of CAO's Powers to the Mayor
The Strong Mayors Act assigns the CAO's powers to the mayor. These powers include the ability to exercise general control and management of the municipality's affairs. Amendments to the City of Toronto Act, 2006 do not give the CAO's powers directly to the mayor but do permit the mayor of Toronto to appoint the CAO, potentially without reference to Council. This could effectively render the CAO a political chief-of-staff, thereby changing the CAO's relationship with the Council, senior staff and the mayor.
The Canadian Association of Municipal Administrators ("CAMA") recently recognized Nova Scotia's MGA as having one of the most complete outlines of the CAO's roles and responsibilities in municipal government in Canada ("The Role and Significance of the Chief Administrative Officer Position in Canadian Municipal Government: A CAMA 'White Paper'", March 23, 2023).
- Structure of Municipal Organization
Under the Strong Mayors Act, the mayor may determine a municipality's organizational structure. This includes the power to hire or dismiss any division head or head of any part of the organizational structure. The Strong Mayors Act excludes certain municipal officials from this authority, such as the Integrity Commissioner, Auditor General, police chief, and fire chief.
In Nova Scotia, CAOs have authority to appoint, suspend and remove municipal employees, subject to certain prescribed carve-outs.
- Municipal Budgets and Committees
The newly legislated Ontario powers allow mayors to propose the municipal budget to council, potentially taking the budget out of the hands of staff, although staff will presumably continue to do the technical work-up. The mayor may also appoint chairs and vice-chairs for certain committees and local boards, dissolve existing committees, create committees, and assign committees certain functions.
The MGA assigns budgetary duties, such as preparing, administering, and adopting budgets, to the CAO, who submits these budgets to council for approval. The MGA gives the power to create committees to council.
- Mayor's Veto Powers
Under the new Ontario legislation, the mayor may veto certain by-laws if the mayor believes that all or part of the by-law could potentially interfere with a provincial priority. If the mayor exercises this power, the by-law is considered not passed by city council. However, council can override a mayor's veto with a 2/3 council vote.
Nova Scotia's MGA affords no veto powers to the mayor or any group of councillors.
- Mayoral Introduction of By-laws
Amendments introduced by Ontario's Better Municipal Governance Act, 2022 allow the mayor to introduce new matters, or a by-law, or an amendment to an existing by-law, to a council meeting to advance provincial housing priorities, thereby circumventing regular council procedures. A by-law presented by the mayor requires a 1/3 council vote to pass.
No provisions in the MGA permit a less-than-majority council vote whether the mayor or any other councillor presents a by-law or any other matter.
- Immunity of Decisions
A decision made or power exercised under the new Ontario legislation cannot be quashed or judicially reviewed for unreasonableness if it is made legally and in good faith.
The MGA contains no similar provision.
Where from here?
The effects of the Nova Scotia legislation have already been felt with quicker decision-making on housing projects in ten special planning areas. The Housing Task Force could demonstrate a new model to streamline decision-making in areas of municipal importance, such as housing or transit, given the pressures placed on municipalities to get things done quickly.
In Ontario, some mayors expressed little interest in using the powers, meaning it remains to be seen to what extent mayors will use their newly granted powers to advance the construction of new housing units or whether mayors may seek to use these powers outside of their intended purposes.
But, whatever the answers, with ever-increasing population growth pressures around housing, transportation, water and wastewater servicing and the like, public expectations for action and results are not likely to subside anytime soon. In that scenario, one might wonder whether the time is ripe for municipalities, in areas where municipalities have explicit jurisdiction, to identify priority areas for eliminating red tape and streamlining processes. To ensure that the public interest does not suffer from prolonged delay in delivering much needed municipal projects and services, municipalities could then work with provincial governments to address the challenges municipalities cannot solve on their own.
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