Building Up the Rule of Law in Ontario- Ministerial Zoning Orders and the Ford Government

“Should they really be allowed to put up that building there?!” Land development is controversial, especially in areas that are growing quickly. As someone who is running for office in one such area, I have heard quite a bit about these issues from voters.

The issues are seldom black and white. Land-owners tout the economic and social benefits of building more of the homes and workplaces that the market demands. Local residents respond with their own compelling arguments, often involving the preservation of neighbourhood character, and avoiding undue strain on infrastructure and local services. In some cases, a proposal is also resisted by those who do not live nearby, but want land use to reflect the preservation of environmental, historical, or community benefits.

Government decisions about land use must balance all of these considerations. While municipalities make the front-line decisions about zoning and official plans, the provincial government retains significant power in Ontario. For example,

  • Municipal decisions must comply with provincial land use plans and policies, environmental regulations, and other provincial laws;
  • Municipal decisions can be appealed to the province’s Ontario Land Tribunal (OLT) if they do not comply with provincial law; and
  • Members of the public can influence land use decisions through public consultations, participation in OLT proceedings, and communication with their elected representatives.

Soon after Premier Doug Ford and Minister of Housing Steve Clark came to office in 2018, they made clear their view that land use policy was out of whack. They argued that it’s too hard to get buildings built in Ontario. Developers, in their view, should get permission to build more of what they want, and get that permission more quickly.

But let’s assume, for a moment, that Ford and Clark are correct about this. My argument here is that, even if land development is to be liberalized, there is a right way and a wrong way to do so. Land development policy should be predictable, rational, and ruled by law. Instead, Ford and Clark have given us an arbitrary, unaccountable, seat-of-the-pants “rule of the ministers,” through the use of what are called Ministerial Zoning Orders. While the Ford government’s approach to land development is not illegal, it is nonetheless undermining the rule of law in Ontario.

Ministerial Zoning Orders

As noted above, there is an established process for land use decisions involving public consultation as well as compliance with established environmental and planning policy. However, section 47 of the Planning Act allows the Minister of Housing to bypass large chunks of this approval process through the use of “Ministerial Zoning Orders” (MZOs). MZOs give the Minister of Housing the authority to permit almost any development project in Ontario (outside the Greenbelt) upon a request from the municipality, or, where the province owns the land in question.

While MZOs have been part of the Planning Act for decades, they were used very sparingly between 2003 and 2018. This changed quickly following the 2018 provincial election. In 2020 alone, the Ford government issued 33 MZO’s — more than twice as many as the McGuinty and Wynne governments combined.

Until March of 2021, the issuance of MZOs at least had to be made with regard to the Provincial Policy Statement (PPS). The PPS sets out the general goals that should be respected by land use decisions across the province, such as increasing the supply of rental housing, reducing greenhouse gas emissions, and protecting watersheds. However, in March 2021, the Ford government passed a law relieving itself of the obligation to respect the Provincial Policy Statement when issuing MZOs.

What’s more, this change was made retroactive — so the Ford government’s MZOs are deemed to never have been required to respect the PPS. They were required to respect the PPS in 2020, when Minister Clark issued an MZO allowing warehouses to be built on the Duffins Creek wetland in Pickering. That project was probably inconsistent with the Provincial Policy Statement, which forbids development on sensitive wetlands such as Duffins Creek. Litigation was commenced against the province on this basis. The government has now retroactively excused its own, possibly illegal decision.

The Same Process For Everyone

The governance trends are clear: unaccountable personal discretion, retroactivity, and scorn for established procedures in which communities and land-owners are expected to participate in good faith. These tendencies should worry you, whether or not you believe that development should be liberalized. A majority government like Ford’s has the power, and should have the courage, to legislate substantive law and procedure openly and prospectively, in a way that applies to and considers everyone.

Vesting unaccountable power over important policy decisions in any single individual is always a step backwards. Doing so for a government that is notoriously receptive to corporate lobbying is more like a lurch backwards into the swamp. If the Premier can simply tell the Minister to allow a certain development without following any process or giving any legitimate reasons, then a single phone call to Doug or Steve (if you are one of their donor buddies) might be all it takes to start the shovels on a lucrative new project. Otherwise, you’ll have to join the slow lane.

The land development process should be the same for everyone, regardless of connections. Every land-owner should have the same access to an expeditious and fair process. Every resident should have the same right to be heard, and to ensure that development complies with the law.

The Rule of Ministers versus the Rule of Law

This isn’t just about what can be built where. It’s about a bigger principle of good government: the rule of law. The rule of law, according to the Supreme Court of Canada, has three fundamental facets:

  • “Equality of all before the law.”
  • “The creation and maintenance of an actual order of positive laws to govern society.”
  • “Oversight of the exercise of public powers.”

This is well-established path to better public policy minimizes scope for corruption and builds stronger bonds of trust between government and people.

Unfortunately, the Ford Government’s MZO spree makes a mockery of these three principles. It lets a few favoured developers circumvent the process (violating equality). It undermines the positive law that governs land use decisions. And it shields the public powers of the Ministers from democratic and judicial oversight.

In his new book The Machinery of Government, Canadian philosopher Joseph Heath identifies an

unfortunate temptation for those who occupy positions of political authority to short-circuit the relationship between political leadership, the normative order and the system of enforcement, so that instead of the norms being enforced, and the leadership exercising its influence though its capacity to change these norms, enforcement becomes directly associated with the will of the leadership. This is what marks the transition that Adams described, away from the rule of “laws” towards that of “men.”

The rule of law demands more than merely exploiting and expanding legislative loopholes, to let Ministers do whatever they want while keeping the government out of court. We need a government that builds up the rule of law instead of tearing it down. It’s time for a change.

The post Building Up the Rule of Law in Ontario- Ministerial Zoning Orders and the Ford Government appeared first on Slaw.

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