Prabmeet Sarkaria

Bill 185 & the proposed removal of minimum (car) parking requirements It's been 30+ days since the Province announced (through Bill 185) that it would amend the Planning Act to prohibit a municipal official plan or zoning bylaw from requiring a site (or development proponent) to provide vehicular parking spaces on lands proposed for residential development and located within a protected major transit station area (PMTSA). This change in planning policy is welcome news for some developments that are struggling to make sense of below grade construction costs tied to the provision of vehicular parking spaces. Over the past 5+ years, I have personally witnessed a significant amount of time wasted at Ontario Land Tribunal (OLT) hearings debating whether there should be no minimum or reduced minimum vehicular parking rates tied to the construction of new residential apartment units (be it condo or rental). Zoning bylaws exist today with minimum vehicular parking standards that may no longer be operative if Bill 185 receives Royal Assent, which is expected in June.

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The Competition Bureau Canada has just released its 2024-2025 Annual Plan, titled "Onwards and upwards: Strengthening competition for Canadians." 📈 This plan outlines key amendments to the Competition Act and showcases the Bureau's commitment to utilizing innovative tools in enforcement actions and fostering competition. Check out the full plan here: https://lnkd.in/drfvUrfT Let's continue to drive forward and create a more competitive landscape for all Canadians! 💼 #CompetitionBureau #CompetitionMatters

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Access to Justice so often means the ability, financially or without legal counsel, to engage in the legal system. But it also means the absence of barriers for people with disabilities and other intersectional experiences. Can people understand and engage with their legal rights and process? Help ARCH Disability Law Centre research this issue by completing a survey at the link below!

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https://lnkd.in/gjyfMRbN A project that may have a positive impact on Nunavut communities and Inuit. It will be interesting to see how this unfolds as consultations occur.

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This 2024 decision of the Ontario Court of Appeal outlines the proper route to appeal a Default Judgment as follows: "Finally, we would observe that, in circumstances such as these, an appeal is not the proper route to seek to set aside the default judgment. Rather, the affected party should bring a motion to set aside a default judgment under r. 19.08(2). It is only if such motion is unsuccessful, that an appeal should be brought." The Court further discusses that that there is no obligation pursuant to the Rules of Civil Procedure to warn a Defendant that you will be noting them in Default (Although I recommend doing so at least twice before doing so as both a courtesy and to insulate your client with respect to defending a Motion to set aside the noting in default/default judgment.) See Relevant Excerpts Highlighted As always, if you found this post helpful, please like and share for maximum reach.

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June 2024 Municipal Planning Update: Provincial and Federal Housing Accelerator funding: Aspirational or Effective? So what’s going on with Ontario’s Land Use Planning system and the municipal housing pledges to increase housing supply? The simple answer!  No one really knows with certainty, but many municipalities are happy to make or confirm municipal housing pledges even if they are aspirational, in return for taxpayer money from the Province and the Federal Government. The Province, lead by the Ontario Conservatives, has said through legislation that municipalities must find ways to increase the supply of housing, including affordable housing. The Federal Government has stated the same goal, and has created housing funding programs by which tax dollars are sent directly to participating municipalities. Municipal Messaging (Pledges > Execution) The typical municipal response has been: The Province assigned population and employment forecasts to municipalities through the Growth Plan, and those forecasts are already contained in Official Plan policies.  If so, why give municipalities more tax payer dollars to execute on the housing and jobs figures they already are obliged to deliver upon? However, despite several GTA municipalities not having met their planned and pledged housing targets, many continue stating their pledge (and it’s only a pledge) to create more homes in return for more cash from the Province, and the Federal Government. Not surprising, some municipal housing pledges include a request for funding by municipalities to cover additional staffing and other costs including the cost to study and come up with solutions to meet the housing pledges…because there is a housing crisis. But overall, it is unclear how exactly the funds flowing into municipal coffers will be used to directly increase housing supply now. Federal Government’s - Housing Accelerator Fund (HAF) Several municipalities have already received a 1st round of funding from the HAF and others are in the process of receiving funds from the Province through a provincial housing accelerator program. Some municipalities have retained (rather partnered with) external consultants including land economists to assist with the decision making that would go along with the distribution of the taxpayer money received from both the Province and the Federal Government. There appears to be public funds (tax payer $$$) in the system for new housing, but no clear way to access the funds.  Perhaps, private/public partnerships are needed to access housing accelerator funding for project viability.   

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The Federal Court in Zaeri v. Canada (2024 FC 638) criticized the Applicant’s counsel for relying on template submissions and awarded costs of $750.00 due to the counsel's conduct, which the court deemed indifferent and disrespectful to the court's resources. Paras: [10] I note that counsel for the Applicant raised many arguments in their written submissions that are similar, or the same, to the written arguments they made in a study permit judicial review application I heard earlier on the day of the hearing of this matter (Court file number IMM-33-23). [11] Perhaps it is a coincidence that these cases are so similar that counsel for the Applicant can rely on such standard-form submissions. [12] But I think not. I see that the Court mentioned in a recent decision with counsel for the Applicant that “[t]he Applicant appears to have relied on some template submissions developed by counsel that may or may not apply to case at hand” (Gholami v Canada (Citizenship and Immigration), 2024 FC 201 at para 16). [13] The “template” approach that counsel for the Applicant has taken warrants commentary. It does not help the Court. It undermines judicial review’s function of evaluating the legality of government decision-making. It is not advocacy, in any meaningful sense of the term. [23] As provided to me, counsel for the Applicant’s informal email stating that they would not be attending the hearing did not contain any explanation for failing to attend. That email did not include a request that the Court proceed based on written submissions or reschedule. That email, based on the evidence before me, appears to have been sent only to the RO. And that email was sent less than a week before the hearing, despite the hearing date being set down months in advance. Furthermore, when I directed that counsel for Applicant attend the hearing, they did not, citing a scheduling conflict. [24] This indifferent attitude warrants costs. Counsel for the Applicant has shown complete disregard for the Court’s resources. They have unnecessarily prolonged these proceedings. They have impeded this Court’s ability to render decisions, engaging in conduct that undermines our judicial system’s integrity. [25] Therefore, pursuant to Rule 22 of the Rules, I find that there are special reasons to award costs in this matter. I make such an order for an all-inclusive lump sum amount of $750.00. ... [Link in comments]

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What is law the around the disclosure of records for speed measurement devices in BC? The rules of disclosure for these records would depend on which disclosure regime the Court deems to apply. These can be the law of disclosure under the Crown’s obligation to disclose, or the common law rules. In cases dealing with radar evidence, the leading case is from the BC Supreme Court in R v Khadikin, [1999] BCJ No 2575. In that case, the Court stated there must be: Evidence that the officer was a qualified radar operator; Evidence that he was operating a radar unit; and Evidence that the unit was tested and found to be working correctly. Case law in BC suggests that (maintenance, service, and calibration records are considered disclosure relevant to the accuracy of the speed measuring device. These items affect the Crown being able to establish evidence that the unit was tested and found to be working correctly. https://lnkd.in/gXVs6aPh

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Professional regulators are sometimes forced to take aggressive measures to deal with unlicensed and illegal conduct. Recently, the PEO was succesful in obtaining a court injunction against a repeat offender, who was also ordered to reimburse us a large part of our legal costs in having to get to this point. #regulator #regulatoryaffairs #regulatorylaw #modernregulator #

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Writing critical essays on emerging areas of law has been my passion since my undergraduate days. As a practicing lawyer, I always delve into the reasons behind legal principles and base my submissions on these foundations. My approach is to support arguments with case law, focusing on the rationale behind decisions rather than the decisions themselves. However, tackling medical law issues presents unique challenges due to its evolving nature. Recently, I’ve been researching the concept of "saviour siblings" within the framework of reproductive health law. This process involves creating a child to provide tissue or organs for an existing, seriously ill sibling, thereby raising complex ethical and legal questions. Key considerations include the Human Fertilisation and Embryology Act, human rights issues, and medical ethics principles like autonomy, beneficence, and paternalism. While I have written extensively on various legal topics, this particular area is both challenging and progressive. I am excited to complete my research and continue contributing to the development of law in all areas. #Law #LegalResearch #MedicalLaw #SaviourSiblings #Ethics #HumanRight

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Canada's international study policies have been under revision for the past few months and additional changes appear to be incoming, specifically to the Post Graduation Work Permit ("PGWP") program. Based on what appears to be in discussion recently, below are some thoughts: 1. Expanding restrictions on PGWP eligibility is justified. Mere study in Canada has and is not the baseline for eligibility despite perceptions based on the breadth of eligibility that has long been in place. 2. While logical, I am skeptical about tying eligibility to programs related to Canadian labour market needs. It has been my understanding for years that the mismatch between labour market needs and new graduates affects international and non-international students alike. My concern is that tying eligibility too tightly to perceived labour market needs risks creating further distortions. I am not convinced policy can be adjusted gracefully - it is important to remember that the time taken to complete an education program is generally measured in years which would inherently limit how responsive the system can be. A better approach is to keep eligibility relatively broad but with limits based on one or more of: i. the genuineness of the institution (e.g. public institutions, maybe years of operation - honestly not entirely sure how to reliably measure this one yet);  ii. level of study (e.g. bachelor's, post-graduate, PhD); and/or iii. program type (e.g. specific selection for trades, certain vocational programs, etc.). 3. Policy changes may make some current students ineligible when they graduate. The fairness issues of this approach are obvious, but practical implications would include a rude awakening for significant numbers of international students currently completing such programs who have already invested substantial time and treasure. While temporary residents must always be prepared for policy change, a major change like this made abruptly could be catastrophic to many. Some degree of advanced warning should be provided before changes are implemented (e.g. diploma students pivoting to Bachelor study), however imperfectly. 4. Receiving Permanent Resident ("PR") status has never been a "direct" endpoint for international students yet I often see this perception not only amongst international students but within Canada's own media. Choosing to study in Canada and then work using a PGWP have been stepping stones toward possible PR status for those with that goal, and a strategy that required early planning and adjustments. There are very few programs for which a "direct" immigration pathway exists, with those generally being some Master's or PhD level students through Provincial Nominee Programs. For this reason, while important for the overall context of immigration policy, I think the goal of PR status should be a limited factor for the formation of PGWP eligibility requirements.

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The second edition of Osler’s Privacy Jurisprudence Review is now available. The Privacy Jurisprudence Review provides busy in-house counsel, chief privacy officers and compliance professionals with updates on recent Canadian court decisions while helping provide a greater understanding of evolving Canadian privacy law. Read the latest insights in the Privacy Jurisprudence Review: https://ow.ly/85ES50RyAZy #privacylaw

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Just reviewed the Canadian Bar Association, BC Branch submission on Phase 2 of the Family Law Act Modernization Project. FYI, Phase 2 focuses on caring for and spending time with children, and family violence. I was pleased to see support for the following much-need changes (among others): - Lowering the threshold for grandparents to seek contact of their grandchildren - Creating a prescribed form for notice of relocation, and establishing consequences for failing to give notice of relocation - Establishing factors for obtaining views of an Indigenous child, to address systemic barriers to presenting their views - Lowering the threshold for appointing a children’s lawyer - Making provisions of the Family Law Act consistent with the new Divorce Act (no more confusion or forum shopping!) - Expanding the definition of “family member” for the purpose of those eligible for a protection order (i.e. to include long-term dating partners) - Explicitly including and defining coercive control as a form of family violence - Investing in trauma-informed judicial education about family violence (not a legislative change, but sorely needed) - Create factors for parental alienation (or, resist-refuse dynamics) - Implement measures to screen early for family violence, and ensure the safety of family violence survivors in court - Making it easier to obtain a conduct order (i.e. on an ex-parte basis) - Lastly, a UNIFIED FAMILY COURT (OK, a long shot, but here’s hoping!) #familylaw #familyviolence #FLA

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In May 2024, Quebec's Court of Appeal tackled the ambiguity surrounding an Earnout provision linked to a share purchase transaction. The key dispute centered around the interpretation of a crucial sentence in the Earnout Agreement. The Court clarified that the term "conditional" did not imply an obligation where non-compliance would result in the extinguishment of the duty to pay the Earnout Amount. Instead, it was established that failing to meet the specified financial ratios would only delay the payment of the Adjusted Earnout Amount without nullifying the debt. Aro inc. c. Polard (C.A., 2024-05-01), 2024 QCCA 546 sheds light on this nuanced legal perspective.

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Disconnecting from work. Taking a moment to disconnect from work can be crucial, especially in the demanding field of litigation. Currently at a bus terminal en route to Kingston, where I'll be heading to Montréal for a brief weekend getaway, I find myself reflecting on my strategy for a new litigation. Pulling up my notes - and punching in key words (without stating any confidential information) is a habit for me at this point, yet I'm reminded of the importance of stepping back and recharging. It's easy to see polished LinkedIn posts that suggest having it all figured out, but I believe acknowledging the need to disconnect is equally important for personal growth and well-being. #lawyers #torontolawyers #canadianlawyers #litigation

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Bill 185 Topic #4: New Rules for Settlement Area Expansions. At the same time that the province is proposing to remove certain landowner rights related to Planning Act appeals, Bill 185 proposes rules which give new opportunities for applicants to seek and secure settlement area boundary expansions. "Settlement areas" are described in provincial policy as lands which have been designated in an official plan for development. If you want to develop land, you probably want that land to be within the defined settlement area. The settlement area boundary is an important policy delineation. Right now, the Planning Act states that an applicant cannot appeal an official plan amendment or a zoning by-law amendment application that would expand or alter an in-force settlement area boundary. This means that an applicant could, in theory, propose a settlement area boundary expansion through a Planning Act application, but would have no right of appeal if the municipality refuses it. Bill 185 proposes a change that would allow a private applicant to appeal the approval authority’s refusal or non-decision on an application to change the settlement area, as long as the proposed boundary expansion does not include any lands within the Greenbelt area. This proposed new appeal right is paired with new criteria for the assessment of settlement area boundary expansions contained within the draft provincial planning statement. These criteria include land needs, infrastructure capacity, and considerations for agricultural land. This new appeal right will be welcomed by many who want to see settlement area expansions on a case-by-case basis. Yet, this new right is difficult to reconcile with the fact that landowners can no longer appeal the comprehensive municipal-initiated decisions on settlement area expansions. The Ford giveth, and the Ford taketh away. (I hope this post was helpful, but it is not legal advice. Double check your assumptions, and consult with a professional).

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