GTA November 2022

BY BARBARA CARSS

The market transformation process that’s giving rise to clean technologies and demands for climate change resilience and environmental, social and governance (ESG) accountability also creates openings for disreputable schemers. Greenwashing is potentially more lucrative than ever, tapping into both a demonstrated consumer preference for products and services with low-carbon credentials and the growing uptake of ESG reporting and benchmarking, which comes with a range of interpretations and validation measures.

Speaking in a webinar earlier this fall, Joanna Vince, a Partner with Willms & Shier Environmental Lawyers, divided greenwashing activity into two general categories: outright misrepresentation; and more subtle insinuations of merit that has not or cannot be proven. The latter is perhaps the more prevalent tact for those looking to cash in on a market in which revenue growth from identified sustainable products has been charted at six times the rate of revenue growth for other types of products.

“A global review conducted by the International Consumer Protection Enforcement Network suggested 40% of online green claims may actually be misleading,” Vince noted. “This can be the use of questionable labels, a failure to prove environmental claims, making vague or irrelevant statements, or making questionable comparisons that make a product seem like it’s the lesser of two evils.”

COMPETITION BUREAU CLOUT

On the flipside, unmasked greenwashers can face steep financial penalties and embarrassing public exposure, particularly if they run afoul of Canada’s Competition Act and the federal Competition Bureau. Richard Butler, another Partner at Willms & Shier, outlined the legislation’s consequences for deceptive marketing practices.

Individuals could be liable for maximum fines of $750,000 for a first-time offence with additional $1 million penalties for each subsequent violation, while corporations could be fined up to $10 million for a first-time offence and up to $15 million for each subsequent violation. However, it’s the “treble damages” clause that is potentially even more costly.

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“THIS IS A REGULATOR THAT DEALS IN FINES IN THE MILLIONS OF DOLLARS, WHICH, IN THE ENVIRONMENTAL WORLD, IS QUITE RARE AND SIGNIFICANT.”

In lieu of the fixed fines, violators could be compelled to pay restitution equal to three times the amount of their financial gains from greenwashing. The Act stipulates that the greater penalty of the two options must be assigned and, in the case of corporations, that could also be up to 3 per cent of annual worldwide gross revenues if a value figure for financial benefits derived from deception can’t be reasonably determined.

“This is a Regulator that deals in fines in the millions of dollars, which, in the environmental world, is quite rare and significant,” Butler said. “Under the Act, you may not make a claim about a product, its performance or effectiveness unless you can prove those claims are accurate based on adequate and proper testing, and the Act puts the burden on the person making the claim to prove, if challenged, that it’s true.”

Vince cited the example of Keurig, which paid out nearly $4 million in penalties and was forced to widely issue corrective notices after the Competition Bureau investigated the claim that a particular type of coffeebrewing product was recyclable.

On a more modest scale, Imperial Manufacturing Group was ordered to pay out $65,000 and issue corrective notices when it was found there was no proof that its manufactured fireplace logs cleaned chimneys as they burned. In a more dramatic example, Volkswagen paid more than $246 million in fines and had to invest $2.1 billion into a vehicle buy-back program related to claims about emissions from diesel vehicles.

ADEQUATE AND PROPER TESTING

In making its assessments, the Competition Bureau applies ISO 14020 standards for environmental declarations and labels. Its stance on greenwashing is set out in a guidance document that lists best practices for environmental claims and counsels consumer vigilance. This is grounded on the premise that all claims must be based on “adequate and proper” testing and provide a precise and accurate description of the benefits.

Notably, the guidance explicitly states: “At this time, there are no definitive methods for measuring sustainability or confirming its accomplishment. Therefore, no claim of achieving sustainability shall be made.”

Among other claims greenwashers may commonly misappropriate, the guidance document provides direction on what can be labelled compostable, degradable, biodegradable, recycled and recyclable. It also calls for regular updating of environmental claims to keep them current with new developments, and requires public disclosure of testing procedures and results.

“If you’re going to make a claim, not only should you have proven it, you have to be able to show to the public where and how you’ve proven that claim,” Butler reiterated.

Beyond the Competition Act, greenwashing activities could contravene the Consumer Packaging and Labelling Act, which pertains to non-food consumer goods, or the Textile Labelling Act, which, among other things, mandates accurate information about fibre types and whether they are reused or recycled. As well, the Canadian

Food Inspection Agency enforces regulations related to the verification of organic foods, and the self-regulating industry body, the Ad Standards Council, can force the revision or discontinuation of advertising that’s deemed either inaccurate or misleading due to the omission of relevant information.

ESG AMBIGUITY

In future, Butler foresees financial or securities regulators will become involved as more listed companies issue ESG reports and regulators impose climate-risk disclosure requirements. For example, 163 of 231 entities on the TSX composite index currently disclose their greenhouse gas (GHG) emissions, but only 80 employ third parties to verify those tallies.

“It’s still quite early on and there’s a lack of uniform ESG metrics, which creates inconsistency and deficiency in that disclosure regime,” Butler observed. “Until we get to a point where people can recognize what those individual frameworks require and what the reporting looks like, there’s room for ambiguity in the reporting and greenwashing.”

Temptation clearly lies in an estimated trillion-dollar market for green investments, but rule-makers are responding.

“The Canadian Securities Administration is developing a national instrument, so that’s a legislated tool, to regulate climate change risk and disclosure specifically,” Butler said. “I think we’re going to continue to see increased regulation and enforcement around greenwashing and claims of ESG or green sustainability that are not verified.” ■

THE COMPETITION BUREAU’S GUIDANCE ON ENVIRONMENTAL CLAIMS AND GREEN WASHING CAN BE FOUND AT WWW.COMPE TITIONBUREAU.GC.CA/EIC/SITE/CB-BC.NSF/ ENG/04607.HTML

“THERE’S A LACK OF UNIFORM ESG METRICS, WHICH CREATES INCONSISTENCY AND DEFICIENCY IN THAT DISCLOSURE REGIME. UNTIL WE GET TO A POINT WHERE PEOPLE CAN RECOGNIZE WHAT THOSE INDIVIDUAL FRAMEWORKS REQUIRE AND WHAT THE REPORTING LOOKS LIKE, THERE’S ROOM FOR AMBIGUITY IN THE REPORTING AND GREENWASHING.”

Winning strategies for sustainable construction

Pretium Engineering’s proven (and pro table)

sustainability approach

Sustainability remains high on the construction industry’s agenda, and for good reasons. Across the sector, there is an increasing awareness that contributing to a cleaner, greener, and more energy-efficient built environment yields long-term benefits for stakeholders and – more importantly – the planet at large.

“There’s plenty of motivation to make sustainability a priority in construction and the good news is that we see that priority being taken seriously by more and more of our clients,” says Jennifer Hogan with Pretium Engineering.

It’s an optimistic report, but now is no time for Canada’s designers, engineers, builders, and other trades professionals to rest on current accomplishments. Given Canada’s Net Zero ambitions, mounting environmental regulations, and a growing call for more eco-friendly built environments among public and private sector stakeholders, construction industry professionals must keep sustainability top of mind to stay competitive and address critical environmental objectives.

Of course, says Jennifer, the other piece of promising news is that there are proven ways to embed sustainability in any project: “For years, we’ve been involved in the design, construction, and benchmarking of multiple deep energy retrofit projects. That’s enabled us to see what sustainability strategies work and share them with our clients to ensure impactful, long-term outcomes.”

Some of the key strategies include: • Plan for the future: Long before the “shovels” break ground, it pays (both figuratively and financially) to bake holistic, future-proof retrofit plans into the initial design.

“Buyers’ remorse is real,” says Jennifer. “Nothing is worse than completing a retrofi t only to realize a few years later that you needed better performance or a different system to achieve your long-term goals.”

For this reason, it’s in the project stakeholders’ best interests to “begin with the end” by reviewing the entire building and all its systems to make sure the team’s energy and carbon goals are achieved once all the projects have been implemented.

For example, adds Jennifer, “If you are already completing cladding improvements at your building, the incremental cost to improve the system, with more insulation or better air tightness, is typically less than the cost to come back in a few years to do it as a separate project.”

• Be pragmatic: Achieving energy savings is important, but it does not make sense financially or environmentally to replace systems or components before they near the end of their useful service life. Existing materials and systems should be maintained to prevent premature failure, and when the time comes, high-carbon materials should be re-used or remain in place whenever possible.

Take, for example, a roofing system that includes an abundance of high-carbon materials like bitumen and insulation products. A well-maintained roof can last longer and can ensure that recovery is a viable option. Alternatively, it also opens the possibility of saving dry and intact insulation during roof replacements.

• Stay current on energy and carbon incentive programs: There are ample programs across Canada that provide funding and support for energy or carbonreduction technologies and projects. Over time, these programs can disappear, evolve, or be replaced by something new entirely. Therefore, there are benefits to staying on top of what energy and carbon programs are available, where they can be found, and how they can be accessed.

“We emphasize staying up to date with the changes so that we can identify opportunities to our clients where funding may be available for their projects,” says Jennifer. “As a result, we have a track record of success in completing projects and the required modelling and documentation to unlock these incentives for our clients.”

• Design with climate change in mind:

Predicting our future climate can be challenging, but we believe it is important to consider potential future loads when preparing our designs.

These strategies will contribute to more eco-forward (and fi nancially rewarding) builds. Enacting them successfully, however, requires collaboration. No one stakeholder can tackle sustainable design and construction alone. Real energy and carbon savings can only be planned and actionized when all relevant parties are united in their approach.

“Sharing knowledge across our various areas of expertise is an integral part of ‘Working Together, Better’ at Pretium,” says Jennifer. “What this means for our clients is that we strive to consider energy and carbon in each of our projects.”

Jennifer Hogan is a Project Principal and the leader of the Energy and Carbon Reduction team at Pretium Engineering Inc., a specialist building science, mechanical, and structural consulting engineering firm that provides high-quality, evidence-driven services. Contact a local office to see how “Working Together, Better” can work for you.

Provincial housing action has planning and development implications SUPPLY PUSH

BY LAURA DEAN, EILEEN COSTELLO, MATTHEW HELFAND, ALEXANDER SURIANO, JOHN GEORGE PAPPAS, JASMINE FRASER AND MAGGIE BASSANI

Bill 23, the More Homes Built Faster Act, was introduced in the Ontario legisla tive assembly in late October. It is in tended to support Ontario’s Housing Supply Action Plan with a stated aim of increasing housing supply in the province.

The bill proposes to introduce various amendments to multiple statutes including: the City of Toronto Act; the Municipal Act; the Conservation Authorities Act; the Development Charges Act; the Ontario Heritage Act; the Ontario Land Tribunal Act; and the Planning Act.

Bill 23 will be subject to committee review and further readings by the legislature and may be amended through that process. However, many of these proposed legislative changes are highly consequential and will be of great interest to the development community, municipalities and landowners.

Drilling down to the Planning Act, Bill 23

proposes several amendments including in respect of limiting third-party appeal rights, community benefits charges, and parkland dedication. The following is a select overview.

THIRD-PARTY APPEALS

The Planning Act currently includes extensive third-party appeal rights in respect of local land use planning decisions, such as adoption of official plans and amendments, passing of zoning by-laws and amendments and the granting of minor variances and consents. Bill 23 proposes to significantly curtail all thirdparty appeal rights.

Amendments to subsections 17(36) (official plans), 34(19) (zoning by-laws), 45(12) (minor variances) and 53(19), (27) (consents) will add the requirement that the prospective appellant be a “specified person” in order to qualify for appeal rights. These specified persons are proposed to be limited to public

bodies such as Ontario Power Generation Inc., Hydro One Inc., operators of railway lines and telecommunication infrastructure providers.

This limit on third-party appeal rights also extends to appeals of municipally initiated instruments. The proposed limit on thirdparty appeal rights will have retroactive effect to appeals that have not had a hearing on the merits scheduled before October 25, 2022.

MINISTERIAL AUTHORITY

Currently under section 23 of the Planning Act, where the Minister is of the opinion that a matter of provincial interest as set out in a policy statement issued under section 3 of the Planning Act (such as the Provincial Policy Statement, 2020), is or is likely to be affected by an official plan of a municipality, the Minister may:

• request that the council adopt certain amendments; or

• directly make the specified amendment to the official plan.

On proposing to make such an amendment to an official plan, the Minister may — and, on request of any person or municipality must — request the Ontario Land Tribunal to hold a hearing on the proposed amendment.

Section 23 is proposed to be entirely repealed and replaced with a much more streamlined process to enable the Minister to make amendments to an official plan. Under proposed section 23, the Minister may simply order an amendment to an official plan if the Minister is of the opinion that the plan is likely to adversely affect a matter of provincial interest. The Minister’s order will have the same effect as an amendment to the plan adopted by the council and approved by the appropriate approval authority.

COMMUNITY BENEFIT CHARGES

Subsection 37(32) of the Planning Act currently provides that the amount of a community benefits charge payable in any particular case shall not exceed an amount equal to 4% (as prescribed by O. Reg. 509/20) of the value of the land as of the valuation date. Bill 23 proposes to repeal and replace subsection 37(32) to introduce a cap on the total amount of a community benefit charge that may be payable in any given case.

The cap will be calculated as follows: The amount of a community benefits charge payable in any particular case shall not exceed an amount equal to the prescribed percentage of the value of the land, as of the valuation date, multiplied by the ratio of “A” to “B” where,

• “A” is the floor area of any part of a building or structure, which part is proposed to be erected or located as part of the development or redevelopment; and

• “B” is the floor area of all buildings and structures that will be on the land after the development or redevelopment.

SITE PLAN CONTROL EXEMPTIONS

Section 41 of the Planning Act sets out a municipality’s powers to regulate development through site plan control. In an area designated as a site plan control area, no person can undertake any development unless the municipality (or the Ontario Land Tribunal in the case of an appeal) approves certain plans and buildings showing the proposed new buildings and structures and the design of the site.

The type of development that can be subject to site plan control is defined in subsection 41(1) of the Act and broadly includes, “the construction, erection or placing of one or more buildings or structures on land or the making of an addition or alteration to

a building or structure that has the effect of substantially increasing the size or usability thereof…”

Bill 23 now expands the list of exempted forms of development that are not subject to site plan control. Previously, only the placement of portable classrooms on school sites that existed prior to January 1, 2007, were excluded from the need to obtain site plan approval.

Now, new subsection 41(1.2) also exempts any residential development that contains no more than 10 residential units. Another new subsection 41(1.3) was added to clarify that a land lease community home with any number of residential units is a form of development subject to site plan control.

EXTERIOR DESIGN OF BUILDINGS

The type of plans and drawings that can be reviewed through the site plan control process are set out in subsection 41(4). Previously, drawings showing the exterior design of a new building, including its character, scale, appearance and design features, were required to be submitted for approval.

Bill 23 proposes to delete paragraph 2.(d) of subsection 41(4) and remove the requirements to provide drawings showing matters of exterior design. The new legislation goes further by adding exterior design to the list of matters expressly excluded from site plan control under subsection 41(4.1). However, matters relating to exterior access to a building that contains affordable housing units can still be reviewed.

The proposed Act also expands the list of exclusions by adding new subsection 41(4.1.1), which states that the appearance of the elements, facilities and works on municipality owned lands or highways adjacent to the development site are not subject to site plan control unless their appearance impacts matters of health, safety, accessibility or the protection of adjoining lands.

MAJOR TRANSIT STATION AREAS

Proposed new subsection 16(20) of Bill 23 requires local municipalities that adopt official plan policies regarding protected major transit station areas (“PMTSAs”) to amend all zoning by-laws in effect within the municipality to conform to those policies no later than one year after they come into effect.

SELECT AMENDMENTS TO OTHER STATUTES

Rental Replacement Regulations

Section 111 of the City of Toronto Act, 2006 and companion section 99.1 of the Municipal Act 2001 authorize Council to regulate the demolition and conversion of residential rental properties. For example, in the City of Toronto, Section 111 of the City of Toronto Act, 2006 allows the City to require a permit for the demolition and conversion of buildings where there are six or more dwelling units on a site or within a related group of buildings, of which at least one unit has been used, or intended for use, for residential rental purposes.

In practice, the authority exercised under section 111 of the City of Toronto Act, 2006 and section 99.1 of the Municipal Act 2001 has been very openended. These sections are now proposed to be amended to give the Minister the authority to make regulations imposing limits and conditions on the powers of a local municipality to prohibit and regulate the demolition and conversion of residential rental properties under that section.

Exemptions from Development Charges

New sections are proposed to be added to the Development Charges Act to fully exempt the following from development charges:

• affordable residential units and attainable residential units;

• non-profit housing developments; and

• inclusionary zoning residential units.

The criteria for what constitutes an “affordable residential unit,” an “attainable residential unit” and a definition of “non-profit housing development” are set out in proposed section 4.1. Future regulations will prescribe developments or classes of developments that will be considered “attainable housing units.”

Various amendments are also proposed to exempt from development charges, subject to certain limitations set out in the Act, the creation of additional residential units in existing rental residential buildings, existing houses and new residential buildings.

Reduction in Development Charges

The Development Charges Act would also be amended to require a reduction in the maximum development charge that could otherwise be charged for the first four years a development charge bylaw is in force.

Specifically, any development charge imposed during the first, second, third and fourth years that the development charge by-law is in force could be no more than 80, 85, 90 and 95%, respectively, of the maximum development charge that could have otherwise been charged.

Rental Housing Development

Bill 23 proposes to reduce development charges for rental housing development. Specifically, the total development charge determined under the development charge bylaw for a residential unit intended for use as a rented residential premises with three or more bedrooms is proposed to be reduced by 25%, reduced by 20% for two bedroom units and reduced by 15% for all other residential units intended for use as a rented residential premises.

A definition of “rental housing development” is also proposed to be added to the DCA. Rental housing development is to be defined as, “development of a building or structure with four or more residential units all of which are intended for use as rented residential premises.”

Currently, the Planning Act prohibits appeals of any portion of a municipal zoning by-law that implements official plan PMTSA policies by establishing permitted uses and minimum or maximum heights and densities within the delineated areas. However, subsection 34(19.5) of the proposed new legislation would limit this protection from zoning appeals.

In order to enforce compliance with the new subsection 16(20) described above, implementing zoning for PMTSAs is not protected from appeal if the updated zoning bylaw is passed more than one year after the official plan policies for the PMTSA come into effect, or where an amendment to those PMTSA policies comes into effect.

PARKLAND DEDICATION REQUIREMENTS

Bill 23 proposes a number of changes to the existing parkland dedication requirements found in section 42 of the Planning Act. Firstly, subsection 42(1.1) of the new legislation changes the calculation of the amount of parkland to be conveyed for developments or redevelopments if they include certain defined classes of affordable units.

In such cases, the parkland contribution shall not exceed 5% of the land multiplied by the ratio of the number of affordable units to the total number of units in the development. Similarly, proposed amendments to subsections 42(3) and (6.0.1) will reduce the maximum alternative parkland dedication rate for both conveyances of land and cash-in-lieu payments.

For conveyances of land, the maximum alternative rate is reduced from one hectare for each 300 dwelling units to one hectare for each 600 net residential units. For cash in lieu, the maximum alternative rate is reduced from one hectare for each 500 dwelling units to one hectare for each 1,000 net residential units.

The number of net residential units used for the purpose of the alternative rate calculation is defined in the legislation to exclude any existing residential units on the lands and any proposed affordable residential units.

The maximum amount of land or value of the land that can be required by applying an alternative rate remains limited to 10% for developments that are less than five hectares and 15% for developments over five hectares. A new transition provision added as subsection 42(3.5) by Bill 23 clarifies that these upward limits do not apply to developments or redevelopments

where a building permit was issued prior to the day the bill comes into force, except where the lands are designated as a transit-oriented community under the Transit-Oriented Communities Act, 2020.

Proposed subsections (1.2) and (1.3) of Bill 23 provide new exceptions to parkland dedication requirements for non-profit housing developments as defined in the Development Charges Act, 1997. The proposed legislation also exempts up to two additional residential units within a detached, semi or row house, or ancillary building on the same lot.

New subsection 42(4.30) allows owners to identify at any time before obtaining a building permit the portions of their development lands that they propose to be conveyed to the municipality in full or partial satisfaction of their parkland dedication requirement. The identification of these lands will be subject to prescribed requirements in a future regulation to this proposed legislation.

Rebate accounts for largest portion of spending ELECTRICITY SUBSIDIES

Ontario

MUNICIPAL OBLIGATIONS

The proposed Act also amends subsection 42(4.1) to require the municipality to prepare and make available to the public a parks plan prior to the passing of a parkland dedication by-law. Previously, a parks plan was required to be undertaken by the municipality prior to adopting official plan policies regarding parkland dedication and the use of the alternative rate.

Ontario’s spending watchdog calculates Class B commercial electricity customers will realize an $8.4 billion subsidy over 20 years through the transfer of a major share of renewable generation costs to the provincial tax base. A newly released report from the Financial Accountability Office (FAO) of Ontario pegs the total cost of nine provincial energy subsidy programs at more than $118 billion for the 2020-21 to 2039-40 period, with the largest portion of that ascribed to the Ontario Electricity Rebate (OER) for residential, small business and farm customers.

Subsection 42(15) of the Planning Act requires that all monies received by a municipality as payment in lieu of parkland, along with all proceeds from the sale of lands received as a parkland dedication, are held by the municipality in a special account. Bill 23 requires that from 2023 onward, a municipality must spend or allocate at least 60% of the money in the special account at the beginning of that year annually.

In 2021-22, the renewable cost shift — which removes approximately 85% of the costs for 33,000 wind, solar or bioenergy generation contracts from the electricity rate base — resulted in a 16% average hydro bill reduction for Class B commercial customers paying the global adjustment on a volumetric per-kilowatt-hour basis, and a 14 % average reduction for Class A customers with the option of participating in the Industrial Conservation Initiative.

PARKLAND IDENTIFICATION AND APPEALS

A significant new feature of the proposed bill is the ability of owners to propose portions of their land for parkland conveyance to a municipality and the ability to appeal refusals of such proposals to the Ontario Land Tribunal.

The provincial outlay for subsidies will diminish annually as renewable generation contracts expire, dipping to about 10% over the next 10 years then falling sharply and dissipating entirely over the remainder of the 2030s.

However, the Act states that these lands can include stratified parcels, lands encumbered with easements or below-grade infrastructure, and non-fee simple interests such as privately owned publicly accessible spaces (POPS). In the case of non-fee simple interests and POPS, the proposed legislation gives municipalities the ability to require owners to enter into agreements registered on title securing the public use of those spaces.

Subsection 42(4.35) of the proposed legislation also establishes new rights of appeal. Within 20 days of receiving notice of a municipality’s refusal to accept conveyance of parkland identified by the owner, the owner may appeal the municipality’s refusal to the OLT.

For the purposes of the report, the FAO lumps Class A commercial customers, with an annual average energy demand of 1 megawatt, in with industrial consumers. Together, those groups are projected to receive a $7.2 billion subsidy over the 20-year period of the renewable cost shift. Small business customers will be eligible for an estimated $24.3 billion via the OER during the same timeframe.

Upon an appeal, the Ontario Land Tribunal will hold a hearing and determine whether the parkland identified by the owner meets prescribed criteria, which will be set out in a future regulation. In cases where it is determined that the parkland proposed by the owner meets the requisite criteria, the Tribunal shall order the identified lands to be conveyed to the municipality and require those lands be credited towards the parkland contribution requirement for the related development.

For small business and residential account holders, including the multiresidential rental and condominium sectors, the FAO confirms that future costs will be lower than was envisioned under the previous government’s pricing scheme.

It would have seen electricity rates jumping 6% annually from 2022 to 2028, following a four-year period in which increases were kept on par with the inflation rate. In contrast, the current government has said it intends to hold increases to 2% annually.

UPPER-TIER MUNICIPALITIES

The proposed bill makes significant changes to the structure of planning authorities across upper-tier and lower-tier municipalities in the province. Upper-tier municipalities are now categorized in section 1 of the Act as either an “upper-tier municipality with planning responsibilities” or an “upper-tier municipality without planning responsibilities.”

Programs to address energy poverty accounted for $694 million in provincial spending or about 10% of the subsidies for 2021-22. This includes the energy portion of the Ontario Energy and Property Tax Credit (OEPTC) and the Ontario Electricity Support Program (OESP), which provides monthly on-bill credits for residential ratepayers with low to moderate incomes.

During the 20 years from 2020-21 to 2039-40, the FAO projects approximately $13.7 billion will be allocated to the energy portion of the OEPTC, which applies on heating fuel costs as well as electricity. The tax rebate amount, which topped out at $243 for eligible claimants in 2021-22, is indexed to the rate of inflation, underlying the FAO’s projection that it will increase by 2.8% annually.

Those upper-tier municipalities without planning responsibilities are listed as being the County of Simcoe and the Regions of Durham, Halton, Niagara, Peel, Waterloo and York. Additional upper-tier municipalities can be added to the list of those without planning responsibilities through regulation pursuant to the newly proposed subsection 1(6).

In contrast, the OESP, which provides direct on-bill credits ranging from $35 to $113 per month for eligible customers, is not indexed to inflation and is projected to represent a smaller portion of total subsidies over time. In 2021-22 it accounted for 2.5% of Ontario electricity subsidies versus a projected 2% for the entire period to 2040.

Pursuant to the new subsection 1(4.3), upper-tier municipalities without planning responsibilities are now proposed to no longer constitute a public body and no longer have the rights of appeal regarding official plans, zoning by-laws, interim control by-laws, minor variances, draft plans of subdivision and consents.

Various amendments have been made to give lower-tier municipalities within these designated upper-tier municipalities the planning functions and approval authority similar to those of singletier municipalities. There will also be some transition measures as the handover of responsibilities occurs. ■

“The FAO projects that annual OESP spending will decline by $99 million from $181 million in 2020-21 to $82 million in 2039-40,” the report states. “Changes to the credit amounts and income brackets can be made through regulation, which the Province has done only once (in 2017) since the creation of the program in 2015. Consequently, the FAO has assumed no change to the credit amounts or income brackets over the 20-year review period. If the Province does change the credit amounts or income brackets, then the cost of the OESP will increase.” ■

SIX PROVIN CIAL STATUTES, MORE HOMES BUILT FASTER ACT, 2022, PRO POSES SIGNIFICANT CHANGES TO LEGISLATION, CAN BE FOUND AT WWW.AIRDBERLIS.COM.

TECH-SAVVY IN THE PROPERTY MAINTENANCE INDUSTRY

Q&A with MJW Team

Technology has touched all corners of the property management sector, but not all prop-tech is easy to spot. In the world of waste equipment cleaning, for example, there are tech-savvy tools and systems used behind the scenes to achieve quicker, cleaner, and higher quality results.

“We’re using technology as much as any other service provider but given the nature of our work and where we do it, our clients don’t always see that,” says Brian De Carli, Vice President with the MJW Team (division of Metro Jet Wash Corporation).

How is tech upgrading the property cleaning process? We asked Brian for his insights.

HOW MUCH TECHNOLOGY GOES INTO YOUR WORK?

Over the years, we’ve used tech to

completely transform how we work, both at our clients’ sites and at our head office in Etobicoke. Some of that tech is more obvious, like in the trucks we drive, the cleaning equipment we rely on, and the safety gear we use, like CO2 detectors. Then, there are the systems we use to coordinate our services, like our integrated sales, dispatch, and human resources system that make our teams far more responsive and efficient.

HOW IS TECHNOLOGY ENABLING YOU TO WORK SAFER?

Working safe relies on the ability to track and monitor what happens on the job and then using that data to address risks as they crop up. For instance, we use digital case management tools to log incidents that happened on the job to track their impacts, how often they occur,

and what might be causing them. That way, we can discuss them in our health and safety meetings and take immediate actions to ensure those incidents don’t happen again.

HOW SPECIFIC IS THIS DATA?

It can be as specific as we want it to be. For example, we have data on buildings that we have done in the past, which we use to instruct teams of any concerns on-site when they return. This is particularly important for our teams to have this information on hand, especially for time management and accuracy.

ASIDE FROM JOBSITE SAFETY, HOW ELSE ARE YOU USING TECH IN THE FIELD?

It’s in the integrated dispatch system that enables us to be more connected and responsive with our clients.

It’s also in the advanced machines and tools we use on the job, be it our hot and cold industrial pressure washers, odour control systems, ride-on mobile sweepers and floor scrubbers, industrial vacuum trucks, and our GPS-enabled trucks.

WHY MAKE THESE INVESTMENTS?

The simple answer is that it’s part of doing business; being the best at what we do means using the most up-to-date equipment. The other answer is that our job has us working in some of the dirtiest parts of a building, whether it’s the garbage room, parking lot, or catch basins. Safety is on everyone’s mind, so we need to continue using the best technology to protect our teams and keep these properties safe and hygienic for anyone who works or lives in these buildings.

WHY IS IT IMPORTANT TO STAY CURRENT WITH TECHNOLOGY IN YOUR FIELD?

Nothing is ever static. Whether

we’re working in condos, apartment buildings, office towers, retail/ plazas, and commercial/industrial facilities, there will always be new challenges and considerations that we need to be able to deal with. We need to continue delivering the service we’re known for and keeping up with technology is one way we do that.

Learn more about The MJW Team (divisions of Metro Jet Wash Corporation) at www. metrojetwash.ca or contact the team directly at 416-741-3999 or toll free at 1-844-669-3999

for EV charger rollout HOME OPTIONS

Multi-res

Multi-residential buildings are seen as a cost-effective option to expand EV charger access and reduce required investment in pricier public infrastructure. A recent federally commissioned study from the research firm, Dunsky, projects Canada will potentially need upwards of 1.3 million Level 2 charging ports in multifamily buildings by 2030 to stay on track with the target for electric vehicles to comprise 100% of new sales and 40% of the total national fleet by 2035.

That’s based on the premise of a complementary balance of at least 195,000 publicly located chargers, with a mix of Level 2 and DC fast charging (DCFC) capabilities, to attain a nationwide ratio of three EVs per charging port. Alternatively, the researchers sketch out a lower reliance on home charging options, which would involve about 152,000 charging ports in multi-residential buildings along with more than 200,000 public chargers, for a higher ratio of 14 EVs per charging port.

Both scenarios are still highly theoretical since there are currently only about 16,640 publicly available chargers on fewer than 7,000 sites across Canada. Nearly 35,000 more EV chargers are pending, and slated to be installed by the end of 2023, with support from the federal zero-emission vehicle infrastructure program (ZEVIP), while a new allocation in the 2022 budget is expected to underwrite another 50,000 by 2027.

However, much is riding on other players getting involved. The Dunsky report estimates a $20 billion investment in charging infrastructure will be needed between now and 2050 when 90% of the national vehicle fleet, or upwards of 31 million vehicles, is projected to be electrically powered. That’s based on current costs of approximately $8,000 per Level 2 port, which takes four hours to deliver a charge adequate for 120 kilometres of travel, and about $150,000 per fast-charger port, which accomplishes the same outcome in about 30 minutes.

“It is crucial to have adequate charging infrastructure to meet this increasing de mand,” observes François-Philippe Cham pagne, Canada’s Minister of Innovation, Sci ence and Industry. “This report highlights important opportunities for the private sector to leverage the foundation we’ve already built to further increase the number of chargers available.”

FAST CHARGER COST PREMIUM

The significantly higher cost of fast chargers underpins the case for focusing on improving at-home access to Level 2 chargers. Dunsky researchers calculate that an approach that favours denser multi-residential saturation could ultimately save billions of dollars if it reduces requirements for public charging hubs. Bolstering the argument, more than 40% of Canada’s population is expected to live in multi-residentials building by 2050.

“Charging at home overnight is the most convenient option for EV owners and can

considered cost-effective

also be the most cost-effective option when charging infrastructure is deployed at scale and incorporated into new buildings during construction,” the report states. “Ongoing efforts by the federal government to retrofit existing buildings and to ensure that new buildings are designed with EV charging in mind will lead to significant cost savings through reduced needs for public charging, while also making EV ownership more convenient for a broader range of Canadian households.”

More than 1 million EVs are projected to be on Canada’s roads by 2025, while a much steeper increase is foreseen over the next 10 years to push the tally up to 4.6 million by 2030 and 12.3 million by 2035.

Dunsky researchers calculate the installation of 1 million EV chargers in existing buildings coupled with building code requirements for EV charging capabilities in all new construction as of 2025 would result in about 34% of multi-residential buildings providing access to charging by 2030. However, a slower rollout of just 100,000 installations and a fiveyear delay in mandating EV-readiness in new construction would mean that just 4% of buildings could offer residents access to EV charging by 2030.

PRIVATE INVESTMENT PROMPT

Multi-residential dwellers who do not have onsite access to EV chargers are identified as a prominent user group for public charging sites, particularly creating demand for communitybased services (as opposed to those geared to highways). That might also be an initial pull for private investment.

“While the business case for public charging infrastructure can be challenging due to the prevalence of residential charging, increased utilization over time thanks to a growing EV population should improve charging infrastructure economics in the coming years. Analysis of the potential profitability of different types of charging infrastructure in different contexts could help the federal government and other stakeholders to focus their efforts to encourage private investment as much as possible, while filling gaps in areas that are likely to be underserved by private investments,” the report recommends. ■

THE DUNSKY REPORT, CANADA’S PUBLIC CHARGING INFRASTRUCTURE NEEDS, CAN BE FOUND AT WWW.NRCAN.GC.CA/SITES/ NRCAN/FILES/ENERGY/CPCIN/2022-EVCHARGING-ASSESMENT-REPORT-ENG.PDF

REVEALING BENEFICIAL OWNERSHIP

Transparency registers mandated for private Ontario corporations

By Graham King and Lara Hubermann

As of January 1, 2023, private corporations governed by the Business Corporations Act (Ontario) (OBCA) will be required to maintain a register of “individuals with significant control” (ISCs) over the corporation. There are significant potential penalties for non-compliance for a corporation and its directors, officers and shareholders.

The implementation of this requirement is aimed at increasing the transparency of corporate beneficial ownership to mitigate against the use of corporations for money laundering, tax evasion and other illegal activities. Similar requirements have already been instituted for federal and other provincially regulated corporations.

The requirement to establish and maintain a transparency register applies to all private Ontario corporations, excluding private corporations that are wholly-owned subsidiaries of a publicly traded corporation.

Private Ontario corporations — particularly those with more complex ownership structures — should identify the individuals who need to be listed on their transparency register and collect their information in advance of January. This would apply to the three following cases:

1/ Those who have any of the following interests or rights (or any combination of them) in respect of a “significant number of shares” of the corporation:

• are the registered holder of the shares;

• are the beneficial owner of the shares;

• have direct or indirect control or direction over the shares.

A “significant number of shares” is any number of shares that either (a) carry 25% or more of the voting rights attached to the corporation’s outstanding voting shares, or (b) represent 25% or more of all the corporation’s outstanding shares measured by fair market value.

As a result of the “indirect control” element, an individual at the top of a corporate ownership structure may be an ISC of a subsidiary corporation, despite not holding a direct interest in the subsidiary.

Two or more individuals will each be an ISC and must be listed in the transparency register if they:

• jointly hold interests or rights described above that meet the 25% threshold;

• are parties to a voting agreement or similar arrangement pursuant to which they agree to exercise, “jointly or in concert”, any of the above-noted rights they may have that meet the 25% threshold;

• or separately hold one or more of the above interests or rights that

meet the 25% threshold and are “related persons” such as spouses, children and possibly other relatives if they live in the same family home.

2/ Those who have any direct or indirect influence that, if exercised, would result in “control in fact” of the corporation. The determination of “control in fact” must take into consideration all factors that are relevant in the circumstances.

However, such factors are not limited to and need not include the individual’s legally enforceable right or ability (or lack thereof) to change the directors of the corporation or their powers, or to exercise influence over the shareholder(s) who has that right or ability.

The OBCA also includes certain express exclusions: in an arm’s length relationship between the individual and the corporation, “control in fact” does not exist solely as a result of influence that is derived from a franchise, licence, lease, distribution, supply, or management agreement or arrangement between them.

3/ Those who are an individual to whom prescribed circumstances apply (which permits future regulations to provide for additional classes of ISCs). If the corporation does not identify any individual who meets any of the above ISC tests, then the transparency register does not need to list any individual but it must still be (1) prepared and maintained and (2) describe the steps taken by the corporation to identify all ISCs.

The transparency register must include the following information on each ISC:

• name, date of birth and last known address;

• jurisdiction of residence for tax purposes;

• date(s) on which the individual became and ceased to be an ISC;

• description of how the individual is an ISC, including a description of their interests and rights in respect of shares of the corporation;

• any other information that may be prescribed under future regulations; and

• a description of each reasonable step taken by the corporation, at least once in each financial year, to ensure that it has identified all ISCs and that the transparency register is accurate, complete and up-to-date.

In addition to a required annual review and update, the corporation must update the transparency register within 15 days of becoming aware of any new information required to be recorded.

OWNERSHIP

The following entities and persons may request access to a corporation’s transparency register:

• the Ontario Government for compliance purposes;

• police forces “for the purpose of conducting an investigation into an offence under a law of Ontario or Canada” or to provide information to a law enforcement agency outside Ontario for a similar purpose;

• tax authorities of Ontario and Canada “for the purpose of administering or enforcing a law of Ontario or Canada that provides for the imposition or collection of a tax, royalty or duty”, or to provide information to the officials of another jurisdiction to assist in the administration or enforcement of a similar law of that jurisdiction; and

• designated regulators “for the purpose of administering or enforcing a law for which the regulatory body is responsible” or to assist other agencies with similar mandates in Canada and foreign jurisdictions. Such regulators include the Ontario Securities Commission, the Financial Services Regulatory Authority of Ontario and the Financial Transactions and Reports Analysis Centre of Canada. As well, others may be designated by regulation.

The transparency register must be kept at the corporation’s registered office or another place in Ontario designated by the directors and not generally available to the public.

A corporation that, without reasonable cause, fails to comply with any of the requirements to prepare and maintain a transparency register, respond to inquiries, or meet disclosure obligations under the OBCA, is liable for a fine of up to $5,000.

Any director or officer of a corporation who knowingly authorizes, permits or acquiesces in: (a) the corporation’s failure to prepare and maintain the transparency register, respond to inquiries or meet disclosure obligations; or (b) the recording of false or misleading information in the transparency register or the provision of false or misleading information relating to the transparency register to any person or entity, is liable for a fine of up to C$200,000 and/or up to six months imprisonment.

A shareholder who knowingly fails to reply accurately and completely to a request from the corporation for information for the transparency register, is liable for a fine of up to C$200,000 and/or up to six months imprisonment. ■

KING IS A PARTNER AND LARA HUBERMANN IS AN ASSOCIATE WITH THE CAPITAL MARKETS GROUP AT BORDEN LADNER GERVAIS LLP. FOR MORE INFORMATION, SEE THE WEBSITE AT WWW.BLG.COM.

PARKING RETHINK

EV ride-sharing emerges as a condo amenity

By Rebecca Melnyk

Residents of a newly built mid-rise condominium in Toronto’s Annex neighbourhood have a fleet of elec tric vehicles waiting for them to use, wheth er that’s for a trip around town, a weekend getaway to the cottage or visiting family outside the province. The amenity, which rolled out this year at the nine-storey Bian ca condos on Dupont Street, arrives on the heels of more ambitious green standards and net-zero targets to drive down community-wide emissions in the city.

Developer Tridel partnered with the Canadian cleantech company, Kite Mobility, which is first-to-market with the transportation model that allows residents to book EVs through a mobile app. The company provides two Tesla model 3s, one Nissan Leaf and eight e-bikes for designated parking spaces. If the condo becomes more occupied and demand ramps up, there’s a system in place to add extra vehicles.

“What we’re after is tackling two of the largest problems with respect to carbon in the city: the buildings themselves and personal transportation,” says Kite’s Founder, Scott Macwilliam.

Users have a convenient and less expensive way to access transportation options. They’re not paying for maintenance, insurance or gas, but rather a pay-as-you-go model or through a monthly subscription of around $400, which figures lower than the estimated $1,000 that car owners spend on average.

On the developer side, the amenity aligns well with Toronto recently abolishing the minimum requirement for standard parking spaces in new developments. Those spaces are getting pricier to build. According to Altus Group’s 2021 Canadian Construction Cost Guide, the estimated cost of constructing a parking space in Toronto is $48,000 to $160,000.

Macwilliam estimates each car-share option can take the place of about 10 individually owned cars. “Sometimes developers can remove an entire level of parking, along with the associated carbon creation,” he maintains.

This both reduces construction costs and shaves time off the construction process, bringing the building onto the market sooner. In Vancouver, where electric mobility uptake is higher, developer Canderel is currently removing a whole parking level of 450 spots in a new building through a Kite partnership.

“The biggest concern is why would people purchase or rent in a building without a parking spot? This is a bit of a step change,” Macwilliam acknowledges.

To confront that reality, Canderel is offering those residents access to the mobility sharing model at no cost for 24 months. That hasn’t yet happened in Ontario, but Macwilliam reports that developers from across Canada are expressing interest, as he prepares to launch new

installations in Ottawa, Calgary, Vancouver and Montreal. Meanwhile, Tridel is first to adopt the model in a Toronto condo.

AFFORDABLE ACCESS

Graeme Armster, director of innovation and sustainability at Tridel, frames it as a helpful way to curb emissions as the city aims for new carbon targets, while giving owners access to green mobility options amid the higher cost of living.

“A lot of people want to drive electric vehicles but there are supply chain issues where they want to buy them but they can’t get their hands on one,” he observed during a recent launch event at Bianca. “People also spend a lot of money to own a vehicle that maybe just sits there half the time.”

With the expectation to build more parking than what the market demands now removed, Armster foresees more developers latching onto solutions like Kite, especially against the backdrop of a low-carbon economy shift.

“I don’t think we’re at a point where we’d completely eliminate parking, but we’re probably not going to increase parking either,” he says. “You come out to a building like this, where maybe 40 to 50% of the building has access to parking spots. The other 50% are looking for ways to get around, and if they can do so in a convenient manner that’s also good for the environment, then why not?”

That’s in keeping with Tridel’s track record of sustainability initiatives.

“We think of how we can continue to build this momentum around sustainability, especially as the world is fixing on addressing issues around climate change,” Armster advises. “We like to try a solution out first — touch, feel and get feedback from our customers. If the feedback is all good, which it has been so far, then we really start looking at how we’re going to roll it out strategically to other developments and that’s the next step.”

For users, borrowing an EV is simple. They book their chosen vehicle and hold their phone up to the car to gain access. In that respect, it’s also a tech-based solution that aligns with smart technologies throughout the building — something Armster sees all demographics getting excited about.

Kite’s goal is to further refine and simplify the technology.

“We’ve made many iterations and tweaks based on user feedback,” Macwilliam affirms. “We’ve all rented a car before or taken an Uber or Lyft and there’s a lot of room to enhance the user experience there. If our users have an issue, they’ll actually connect to a live person who will help them right away versus completely digital. There are little cues we’ve taken from the industry that we’re trying to elevate that digital experience.” ■

REBECCA MELNYK IS THE EDITOR OF CONDOBUSINESS.

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