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Which Politician Should I Challenge?

I'm Very Angry - who do I write to?
Who is responsible?

Here's my two cents on a quick review of Canadian constitutional division of powers. It's important in planning our strategies. Please also read the page on Provincial Priorities 2023 at this site. You can use the e-mail generator on that page to send an e-mail to MPP Sabawy, the Minister, and the Premier, about amending 2023 Provincial Priorities to avoid unintended consequences.

 

City of Mississauga and Councillor Matt Mahoney

 

The municipality (City of Mississauga and Region of Peel) doesn't exist under Canada's constitution. It is created, amended, deleted, or re-written  by the Legislature of the Province. The provincial government has "exclusive jurisdiction" - Constitution Act, 1867 (aka British North America (BNA) Act, 1867) "92. The City Councillors can only do what they are permitted to do by Ontario Government law, i.e. the Municipal Act, the Regulations under the Municipal Act , the Planning Act, the Regulations under the Municipal Act, and Ministerial Zoning Orders. Those  of us challenging the City need help from a municipal law lawyer (which I am not) in understanding the delegation of powers, the duties, the obligations, and the procedure applied by the City (and the Region of Peel) under the Minicipal Act and the Planning Act.

 

Province of Ontario and MPP Sabawy

In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

 specifically,

"8. Municipal Institutions in the Province." and

"13. Property and Civil Rights in the Province."

The province therefore has exclusive jurisdiction over municipal law and zoning law.

Government of Canada and MP Iqra Khalid

The federal government can only make laws under section 91

 

"for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,"

 

(some examples follow, see also  images below)

"15. Banking, Incorporation of Banks, and the Issue of Paper Money." and

 

"27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters." but not "14. The Administration of Justice in the Province,". Under section 91 the federal government does have the power "3. The raising of Money by any Mode or System of Taxation."

 

Who is the Real Boss?
Where does the Buck Stop in determining the Rules about what the City Does?

The combination above, in Constitution Act, 1867 sections 91 and 92, means City Councillors like Matt Mahoney have no powers except what MPP Sabawy's government gives them or takes away. MPP Sabawy and his government have complete control over municipalities, planning, zoning, and official plans except, to some extent, they delegate some limited powers to the municipality. The province can, however, initiate appeals of City Council decions to the Ontario Land Tribunal or use Ministerial Zoning Orders to keep the municipality in line. The Ontario Land Tribunal is a creature of the Ontario Government.

 

Can the feds do anything?

Relevant to our 4099 Erin Mills Opposition, MP Khalid and the federal government only have power to tax and spend money, and control, that spending respecting nation-wide projects (eg. Canada Health Plan (see link to paper below), CMHC, and Climate-Action Incentives). MP Khalid and her government could help with funding through CMHC, IF A DEVELOPMENT IS BEING BUILT, re affordable housing and rental housing. She could advocate for and help find funding for climate related issues.

 

She could:

1. Encourage the Developer to work with CMHC and the Rental Construction Financing Initiative, to encourage the construction of sustainable rental units.

2. Encourage the Developer to work with CMHC and the National Housing Co-Investment Fund for new affordable housing, and

3. through the federal Greener Homes initiative to encourage funding for environmentally friendly heating and air conditioning.

 

So Who Do We Challenge?

If the plan is to STOP the development OR NEGOTIATE to reduce height and density, then the issue is entirely municipal (i.e. Councillor Matt Mahoney and his Council), and their ultimate bosses need to be challenged, (i.e. MPP Sabawy and the province). If the development is going ahead, some in our group might want to encourage family-sized units that are rentals and affordable as well as environmentally friendly (i.e. low carbon producing). That's where MP Khalid might help. She can't help in an area of "property and civil rights" or "municipal institutions".

 

Trying to Understand the Spending Power of the Feds

For help in understanding the federal government's limited ability to step into areas of provincial jurisdiction using the "spending power", I recommend this paper on the Canada Health Act at the Library of Parliament :

Federal Funding for Health Care

Click on either of the images below to go to sections 91 and 92 of the Constitution Act 1867, aka BNA Act 1867 at the federal Justice department site:

BNA Act, 1867, section 92.jpg
Is it Proper or Improper for us to be challenging MPP Sabawy respecting this project and suggest that he has a role to play in meeting with the Developer or intervening/advocating on our behalf?

 

Here's an image of Regulation 580/22, Province of Ontario, Provincial Priorities

under Municipal Act, 2001, S.O. 2001, c. 25

which applies to cities with super-mayor powers (not yet Mississauga). I use it because it illustrates the role that "provincial priorites", AS REGULATIONS made by MPP Sabawy's Government under the Municipal Act, play in municipal decisions by cities and regions and in appeals under the OLT.

Here's an image of section 3(5) and (6) of the Planning Act, Province of Ontario. I use it because it illustrates the role that "provincial priorites", AS REGULATIONS made by MPP Sabawy's Government under the Planning Act, play in municipal decisions by cities and regions and in appeals under the OLT.

Planning Act section 3 sub 5.jpg

It is my understanding that MPP Sabawy takes the position that any complaint about the 4099 Erin Mills Parkway proposed Development, must be made to Matt Mahoney and the other City of Mississauga Councillors. MPP Sabawy, as I understand it, takes the position that a provincial politician and the Conservative Government cannot interfere with the decision-making process made by the City or the Ontario Land Tribunal. His position is, as I understand it, that it is therefore inappropriate for me to suggest that MPP Sabawy be asked to speak to the Developer or to speak to the Premier about speaking to the Developer or to speak to the Premier about addressing the crisis being faced by our community.

It would be helpful if MPP Sabawy stated his position publicly, just in case I have got it wrong. The fact of the matter is, that those of us who live in Erin Mills South, need the help of friends and neighbours who voted Conservative in the last provincial election or who usually vote that way. Those individuals are able to communicate with MPP Sabawy and let their voices be heard. Conservative voices are more likely to be heard than non-Conservative voices.

 Regulation 580/22 above illustrates provincial priorities. Protection of small businesses is not included. Walkability is not included. 

 

I respectfully draw the attention of MPP Sabawy to the laws of Ontario, including the Municipal Act and Regulations, and Canada's constitutional law. Ontario Regulations are laws made quickly by the Lieutenant-Governor-in Council on the advice of MPP Sabawy's Government. Regulations can also be amended quickly, to deal with emerging issues, for example, to add new paragraphs to Reg. 580/22 that say something like: 3. None of the above-mentioned priorities negates the importance of protecting established thriving retail businesses and services. 4. None of the above-mentioned priorities negates the importance of walkable living environments. 5. None of the above-mentioned priorities negates the importance of carefully planned mature neighbourhoods and environments. Why can't the provincial government modify the applicable law to promote these additional values?

Although Regulation 580/22 may not at this moment apply to the City of Mississauga, the point is that it illustrates that protection of small businesses and walkability to neighbourhood shops and services are not provincial priorities for MPP Sabawy's government. That needs to change. This crisis in our neighbourhood is a good example where, helping Developers build, conflicts with important values, including Conservative values in our community. This is not an example of "NIMBYISM". This is an example of residents taking action to protect their local small businesses and neighbourhood hub.

I respectfully take legal issue with the postion (if I have his position correctly) of Mr. Sabawy that he can do nothing in relation to the 4099 Erin Mills Parkway application. I agree with him, that it would be improper for him to interfere with any decision of City Councillors, made within the four corners of their jurisdiction. I agree with him that it would be improper for him to interfere with any appeal to the OLT within the four corners of the OLTs jurisdiction. Where MPP Sabawy and I disagree, it appears, has to do with the source of the jurisdiction possessed by the City Councillors and the OLT.

Matt Mahoney and the other City Councillors only have jurisdiction to make decisions in the best interests of the community IF THE PROVINCE HAS GIVEN THEM THAT JURISDICTION in the Municipal Act or Regulations made under the Act. THE PROVINCE SETS THE PRIORITIES AND THE LEGAL BASIS FOR ANY DECISION MADE BY THE CITY. City Councillors must construe and apply the law (legislation and Regulations) imposed upon them by the Province. Matt Mahoney and the City Councillors must follow the priorities set by MPP Sabawy's legislature and Government. If the City does not obey that law, an appellant, such as the Developer will appeal to the Ontario Land Tribunal which is also a creature of province-made law. The OLT is also required to construe and apply the law in accordance with the Municipal Act and the Regulations. The law limits decisions by the City or the OLT.

So what happens if an important societal value (including Conservative values) is not included in the Municipal Act or the Regulations? Constituents need to bring that defect to the attention of their MPPs and the Premier so that the Municipal Act and its Regulations can be amended to fit the will of the voters. In the case of 4099 Erin Mills Parkway, it is apparent that important societal values such as protection of small businesses and walkability in neighbourhoods, have been, perhaps unintentionally, omitted from the provincial laws that govern the City Councillors and the OLT. If a law has unintended consequences, then why is it improper for me, or my friends who are Conservatives, to ask our MPP to change the law? It is MPP Sabawy's Government that is able to solve this crisis in our community.

In the current crisis, the unintended consequences need to be corrected forthwith by Regulation, with the unintended consequences brought to the attention of the Premier by MPP Sabawy, forthwith, before the City Councillors begin their deliberations on the Developer's application.

I respectfully suggest that there is no law that precludes MPP Sabawy or the Premier from talking to the Developer, the focus group, or a member of the opposition group to encourage a reasonable settlement that benefits both the Developer and the community. As much as some of us enjoy playing hardball, sometimes reasonable settlement discussions, benefit the whole community, and bring political capital to the mediator.

If I have mistated MPP Sabawy's position , I apologize and ask him for a public statement clarifying his position. If I have misstated the law I ask someone to correct me.

Please also read the page on Provincial Priorities 2023 at this site. You can use the e-mail generator on that page to send an e-mail to MPP Sabawy, the Minister, and the Premier, about amending 2023 Provincial Priorities to avoid unintended consequences.

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