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2009/07/20 CORPORATE SERVICES COIVIIVIITTEE AGEIVDA S9XT~ AVIEE~9NG 9V~oraday, ,9u~y 2~, 2~09 Coa~mat~ee Rooo~a #2 - 4:3~ pom. io Mar~~ates o€ t~Oe April f, 2009 G~9eetaa~g 2o Cou~av~~ar~ucatioa~s a) Iteqa~est foa~ aro Exemptaoa~ to ~9~e Ca~y's Svviax~¢x~ing Pool Fence ~y-law 3o Deputations a) Crossli~n9c B~idge ~orgse g~~oposal ~eo Ci~y of IViagar~ Falls ~us 1'err~an~9 40 9tep~os#s Staff Contact a) ~.-2009-33 9(ea~ ~eart~an App9icataoc~ o~ Section 93of o~ tMe NGu~6c6gsaV Ac~, 200f Our ~ale Noo 20~9-~42 b) CAO-~009-0~ BCe~o 'e'odd ~rocess Related to the Ea~oy Retarertt~e~t I~cea~tave ~ptuor~ 5o Ne~nr ~o~sia~ess fio Adjour~aoxtes~t IIV-C~?@111EF~/4 SESSiOIV a) ResoButior~ to go anto C~osed ~eetac~go - ~ N~~:~ar~~~ll~ MINl1TES OF CORPORATE SERVICES COMIVI9TTEE Fofth Meeting, Monday, Apri~ 6, 2009 Cot~~cil Charrabeo-s, 6:20 P.IVI. PRESENT: Mayor Ted Salci, Councillor Victor Pietrangelo, Chair; Councillor Jim Diodati, Shirley Fisher, Vince Kerrio, Bart Maves, Councillor Thomson, Janice Wing and Carolynn loannoni STAFF: Ed Dujlovic, Ken Burden, Dean lorFida, Ken Beaman, Denyse Morrissey, Alex Herlovitch, Todd Harrison, Geoff Holman, Karl Dren, Lee Smith, Serge Felicetti, Trent Dark and Lisa Wall. PRESS: Corey Larocque, Niagara Falls Review Alison Bell, Niagara This Week 1. 2009 BUDGETS: a) General Purposes Budget MOVED by Councillor loannoni, seconded by Mayor Salci that staff reduce the capital contributions as outlined in the General Purposes budget presentation in the amount of $458,810. Motion: Carried Opposed: Cour~callor Diodati Action: Recommendation subrnitted to Council Ap~il 6, 2009. MOVED by Councillor Wing, seconded by Councillor Thomson that staff provide a report to Council on the actual costs of Animal Control Services for consideration in the 2009 General Purposes budget. Motion: Carraed Unanirnously Action: Recorramendation submitted to Council ApruG 6, 2009. MOVED by Councillor loannoni, seconded by Councillor Wing that Council defer the passing of the 2009 General Purposes budget until the next Corporate Services meeting. IVlotion: Carried Opposed: Mayor Salci Actiort~: Recommendation subra~itted to Council ApriE 6, 2009. -Z- 2. ADJOl1RNMENI': MOVED by Mayor Salci, seconded by Councillor loannoni that the regular meeting of the Corporate Services Committee be adjourned at 7:30 p.m. and the presentation for the Capital Budget and the Municipal Utility Budget be presented during the Council meeting tonight. Motion: Carried Unanirtnously Action: Recora~mendation subrx~itted to Cour~cis April 6, 2009. Corporate Services Depao~ment Clerk's Division Inter-Departraient Me~morandur¢~a Nla~1Y'a~alls TO: Councillor Carolynn Ioannoni DA~~: June 29, 2009 & Members of the Community Services Committee FROII~: Dean Iorfida City Clerk Ext. 4271 RE: ~2eqanest ~'or a~n ]Exemptnon to the Cnty's Swimflning ~ool ~e~nce ~y-9aw By-law Services received a complaint about a non-fenced pool. The owner has requested to approach Council for an exemption. The City has never granted an exemption under the Swimming Pool Fence By-law. An attached memo from the City Solicitor reiterates that the City should not grant such an exemption. RECOIVrMENDATIOIV: That the request for an exemption be denied. ~ Working Together to Serve Our Communiry Clerks • Finance • Human Resources • Infom?ation Systems • Legal • Planning & Development To: Dean Iofida From: Ken Beaman Subject: request for Exemption from Swimming Pool by-law The analysis of a proposal of this variety should start from the purpose of a fence pool by-law is to protect children and other vulnerable persons ( and animals) from drowning in a swimming pool. The purpose is not to eliminate all possible risk of drowning. Any council enacting a by- law of this type is well aware that the province of Ontario has vast quantities of unfenced and untamed rivers and lakes in which a person could drown. The reason that societies have develop governments and regulations is that people will not, of their own accord, create structures, buildings and play areas like pools with the safety of their fellow human beings in mind. There would be no need for this regulatory authority if this were not the case. The need for regulatory intervention is accepted to be particularly acute in situations involving children. It is generally accepted that children, as a group are more prone to making errors in judgement in matters involving safety and have less resources in terms of physical capabilities and experience to fall back on when they find themselves in a dangerous situation. That being said, the common law also recognizes that goveriunents are not compelled of enact by-laws to regulate dangerous activities. If the legislature declines to regulate a dangerous activity, the courts will not compel the government to do so. The law achieves regulation after the fact. It waits for the dangerous activity to result in an accident and allows the victim to seek compensation from the party it deems to be responsible for the activity. By awarding compensation, the common law seeks to encourage the persons who engage in the activity to be more careful. The common law solution to dangerous activities is frequently unacceptable to legislatures. Legislatures frequently are not satisfied with waiting for people to be injured in order to address a particular risk. Accordingly, regulations such as the swimming pool by-law are enacted. At common law, once legislatures have decided to regulate and area of activity they are expected to make reasonable efforts to protect those who are intended to the be the beneficiaries of the protective effect of the regulation in question. In fact, it has been established at law that a regulatory agency is expected to protect those who attempt to circumvent the regulations from their own folly. Returning to the purpose of the By-law, as stated above, as the purpose of the by-law is to try to prevent drowning in a swimming pool, the proximity of other possible places to drown is irrelevant. Council has chosen to try to eliminate one possible source of tragedy. The fact that council can not eliminate all possible sources of tragedy is not a reason to allow that one source to remain in place. If the argument being advance were to be given any credence, then regulatory activity would simply not occur. The police cannot stop every speeding driver. Nor is it a defence to that offence to submit that no one else was on the road at the time of the speeding. Furthermore, as the Canadian Red Cross reports that more people drown in bath tubs than drown in swimming pools, to follow the argument that one should not regulate pools because all other sources of the risk of drowning have been similarly regulated leads inevitably to the conclusion that there should be no regulation at all. It should also that the regulator is the one that, in the event of tragedy, it is the regulator who has to answer the question "What did you do to prevent this?" It is submitted that "nothing" is not the best answer to this question. (An example of this answer not being accepted as adequate occurred recently in the propane explosion in Toronto.) In the case of an accidental death by drowning it is not beyond the realm of possibility that a coroner might be asking that question of the regulator in a public forum. A site specific exemption to the by-law is only available if the by-law is amended to allow every other citizen in the City the same privilege. The law does not tolerate ad hoc exemptions. If council chooses to so amend the by-law, then regulations or guidelines outlining the criteria for an exemption should be developed. Finally, the writer makes the following submissions: It is submitted that The author of this attached web page www. keepsafe. ca would argue strenuously against the proposition being advanced. The writer has dealt with a number of similar requests over the years. In one case, a rural hot tub located nearly a kilometre from the nearest neighbour, a cat drowned in the tub during the time that the matter was before the Court. In the other, which involved a rural property in Flamborough, a child died in a rural pool in Oakville while the case was underway, the presiding Justice of the Peace, having heard report of the Oakville incident awarded the maximum fine against the Flamborough defendant even though the writer had asked for a lesser amount. Finally, in regulatory matters, it should always be borne in mind that the parties that the regulations are designed to protect is seldom at the table to debate with the person who is seeking relief from the regulation. They are usually consumers who will buy the regulated good from the party who wants less red tape. (Examples of red tape reductions that have been demonstrated to fail to protect the public are the Walkerton water scandal and the Maple Leaf Meats recall) Or they are those who lack a voice of their own such as children and animals. Legislatures must bear this imbalance of access in mind when considering proposals of this type. His Worship Ted Salci and Council 4310 Queen Street Niagara Falls, ON L2E 6X5 To: His Worship Ted Salci and Council May 15, 2009 Re: Pool Fencing 10941 Niagara River Parkway Niagara Falls, ON L2E 6S6 I am respectfully asking to be heard by you in council regarding a request for an exemption to the Swimming Pool Fence By-law 73-186. We live in rural Niagara Falls on the Niagara River Parkway at Marshall Road. We have no houses directly near us. Our nearest neighbors reside approximately 550 feet away from us. We own all the adjacent land to our home so there is no issue with respect to houses being built close to our home. Also, our pool is not clearly visible from or near any roadway. ( see photo ) My home is approximately 600 feet from the Niagara River, with its steep banks and fast moving current. There are several deep drainage swales near our house, there are deep ditches a.nd several large ponds.( see photos of ponds and proximity of Niagara River ) We have a safety cover to cover our pool in the wint~r when it may not be visible due to snow. The safety cover straps are strong enough to withhold we~ghts up to 40001bs and a 200 lb man can safely walk across the cover.( see photos of cover ) I respectfully ask council to grant me an exemption tp By-law 73-186. We are prepared to indemnify the City of Niagara Fa11s and execute any waivers required. Yaurs respectfully, . - Conni~ ~1T,~thrlut~ft City Clerk 4310 Queen Street P.O. Box 1023 Niagara Falls, ON L2E 6X5 To: The City Clerk May 15, 2009 Re: Pool Fencing 10941 Niagara River Parkway Niagara Falls, ON L2E 6S6 905-295-0864 This is just a brief letter respectfully requesting to be heard by his Worship Ted Salci and Council regarding Swimming Pool Fence By-law 73-186. I would like to ask for an exemption to this By-law for the reasons stated in the enclosed letter. I would like to be placed on the agenda to be heard on this matter by council as soon as is possible. Your cooperation with this matter is greatly apprecia~ed. Thank you, C~_~~~~` . Connie Nothdurft a . ..~r'~ a :i. •~,r~t . , r.~ . . ~.'4. 4t+~., ~,3 w A ,k; . ~~~fj ~ ~ s ~..r~ j 4 . ~4 k '~a ~ . .,.r, y x .r.: . , . . . , , . . .i_ . . . . , . . . . . ~ . . ' ~ ' . ~ ~ . . ? . . . . . . . . ' . . ~ I - „ ~ , l ~ , ~ . . . _ . ~ 5 I,~/-4• y / ~ ~ i '.'4:. 1 ;i~i~, f ~ r~/ ~,i ~ ~ 4 i `h,~.l 31~~r'! .i~ { ~:1 ~ - . , h ~C ' r r y ~.~,~+x ~ t ~ " ~,~r~.~ ~731~t~l~ ~ ~ ~ y ~1 i b ~s~ . h ~.1~ ~t. 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Y , , rc ~,i ~d.w..'ij ' " ~ ~ ~V. r ~ . ~ .sii.'-"i~ A jAr- ~ R ~ ` ~ . 'r ; r . ' ~ 't~' j ~ ~ ' r ~,~t r,~~ , ~h ~1'4 ~ { - ~ ~ R i ~ ~ ~ ~ ~ 1 r. . °~zJ"~t . ~ ~ '.1 in ~'i'~~~j~.. r { 3'1 ~ ; 4- . i' ~ . ~ ~ " ~ y t ~i. ~ i ~ F~ • ' 'v $ ~ ; , . . A .J~ t :~4, x 4yyy W < ~i~ i~'`~,• ~l ;i;~' ~F : ~ ~ Y :1 ° , ~C `t,. ~ 'T , . ~ 1 yk f ,d.' , ~ ~ ` ~ ~ ~ ~.'h,` ~ ~ . , ~w ~a~ d -a,~ 4 i ~f~~~ r~~ ne' "y~a.~ag . ' . ~ µ y ~ a ? f at ~ ~ ~ ~ ~ p ` ' ~ ~ ~ ~ F . . . ~ l. . _ r . , ! _ F,: F,.. . . . ~cac~sisaa c . . a . ~ ~ - n~~r. r~ , I. , a , CI'I'Y OF NIAGAI2A FALLS A CONSOL,IDATED ~Y-~AW Being ~y-law No. 73-159 as amended by: By-law 73-186, By-law 79-115, By-law 80-131, By-law 81-65, By-law 92-254, By-law 95-276 and By-law 96-238. A k~y-law for requaa~ing t~ne $'encirag of p~-gvately owned swa~~nnng poo~s. W~~~AS paragraph 24 of subsection 1 of section 3 54 of The Municipal Act provides that by-laws may be passed by the councils of local municipalities for requiring owners of privately owned outdoor swimming pools to erect and maintain fences and gates around such swimming pools and for prescribing the height and description of, and the manner of erecting and maintaining, such fences and gates; 1VOW 'T~3[~~FO~ TH~ COUNCg~, OlF 'g'~][~ CORI'O~2A'~~ON ~F 'g'gl[~ CI'g'X OF IVgAGA12A ~'A~]LS ENAC~'S AS l~Og,~,OWS: 1. For the purposes of this by-law, (a) "owner" includes a firm, corporation, club or unincorporated society; (b) "swimming poll" means any structure, basin, chamber or tank containing an artificial body of water for swimming, diving, wading or recreational bathing and having a water depth of 12 inches or more at any point but does not include: (i) any such structure, basin, chamber or tank that is completely above ground and which has a side height of not more than 25 inches measured from ground level at all points on its perimeter, or (ii) a swimming pool which is subj ect to the regulations made under The Public Health Act. (c) "ground level" means the highest level of the ground at any point around the exterior of the swimming pool within 42 inches measured horizontally from the outside wall of the swimming pool. 2. Subject to section 4, every owner of a privately owned outdoor swimming pool shall erect and maintain on the land or a part of the land on which such swimming pool shall erect and maintain on the land or a part of the land on which such swimming pool is located a fence that, (a) by itself or in conjunction with any building or with any boundary fence which complies with the requirements of clauses b, c and d of this section, shall completely enclose the swimming pool, (b) shall be not less than 42 inches in height measured from ground level at all points on its perimeter, -2- (c) shall be either; (i) of inetal wire (chain link) or not less than 12 gauge with openings not greater than 1.5 inches by 1.5 inches and supported by iron posts spaced not more than 10 feet apart and set securely in concrete and having a top rail to which the fence fabric is securely attached, provided that the erection of a metal wire (chain link) fence prior to July 7th, 1980 and the maintenance thereof with openings not greater than 2 inches by 2 inches shall not be deemed to be a breach of this by-law, or (ii) of wood, masonry or other material of equivalent strength and providing an equivalent degree of safety and supported by posts of wood, masonry, iron or pipe spaced not more than 10 feet apart and set securely and if such fence has openings at least one dimension of any such opening shall not exceed 3 inches, (d) shall not consist of any barbed wire and shall not have any devices for projecting an electric current through the fence, and (e) shall be so located and constructed that access to the swimming pool area from outdoors shall be only by means of one or more gates in the fence which comply with the requirements of section 3. any opening between the bottom of the fence and the ground beneath it shall be not greater than 3 inches. (g) shall be so designed and constructed to deter persons from climbing it, (h) shall be so designed and constructed that all horizontal or diagonal structure members shall be located on the inside or pool side of the fence, 3. The owner of a privately owned outdoor swimming pool shall erect and maintain each gate in the fence enclosing the swimming pool in accordance with the following requirements: (a) each gate shall be constructed of inetal wire (chain link) of not less than 12 gauge with openings not greater than 1.5 inches by 1.5 inches or of wood or other material of equivalent strength which provides an equivalent degree of safety and with openings no greater than provided in subclause (ii) of clause (c) of section 2, provided that the erection of a metal wire (chain link) gate prior to July 7~", 1980 and the maintenance thereof with openings not greater than 2 inches by 2 inches shall not be deemed to be a breach of this by-law. (b) each gate shall be not less than 42 inches in height. (c) each gate shall be supported by substantial hinges and (d) each gate shall be equipped with self-closing, self-latching devices placed at the top and on the inside of the gate. % -3- (e) any opening between the bottom of the gate and the ground beneath it shall be not greater than 3 inches. 4. The provisions of this by-law requiring the erection and maintenance of a fence that shall completely enclose the swimming pool shall not apply if the outside wall of the swimming pool has a height of not less than 42 inches measured from ground level at all points on the perimeter of such wall provided that any steps, ladder or other means of entry to the swimming pool are protected by a fence and gate which comply with all other requirements contained in sections 2 and 3. 5. Every owner of a privately owned outdoor swimming pool shall maintain the said fence and gates in such a manner and to such an extent as to ensure at all times maximum security and protection against entry to the swimming pool by unauthorized persons. 6. This by-law shall be administered by the Building Inspector. 7. (a) Except as provided in subsection 2, this by-law shall come into force and take effect on the date of the passing thereof. (b) Where a swimming pool has been constructed, installed or erected prior to the date of the passing of this by-law, the provisions of By-law No. 6372, 1963 shall apply to such swimming pool until the 31 St day of May,1974 and thereafter the provisions of this by-law shall apply to such swimming pool. (c) Subject to subsection 2, By-law No. 6372, 1963 is hereby repealed. 8. Every person who contravenes this by-law is guilty of an offence. (Original By-law 73-159 was) passed this 23rd day of July, 1973. J. L. COLLINSON/ CITY CLERK R. KEAGHAN / ACTING MAYOR First Reading: July 23rd, 1973 Second Reading: July 23rd, 1973 Third Reading: July 23rd, 1973 -4- SCH~~LT~,~ ~~A" 1. The permit fee for a swimming pool and fence installation shall be $70.00 for the initial $5000.00 of valuated cost of the pool plus $9.36 for each addition $1000.00, or part thereof, of valuated cost with a minimum fee of $70.00. 2. No person shall install a swimming pool until a permit has been issued. 3. For the purpose of this by-law "valuated cost" shall mean the cost of all materials, labour and services involved in the installation of a pool. 4. Refund of fees, where applicable, shall be in accordance with the provisions of Schedule `C' of By-law No. 94-42, as amended. 5. A swimming pool shall be installed in accordance with the Lot Grading Policy for Subdivisions, where applicable, and shall be installed so that surface drainage does not adversely effect any adjacent property. A~RD ~ ~E~~s ~~p Barristers and Solicitors Steven A. Zakem Direct: 416.865.3440 E-mail: szakem@airdberlis.com July 3, 2009 VIA FACSIIIAILE & EMp?IL Dean lorfida Clerk City of Niagara Falls 4310 Queen Street, Box 1023 Niagara Fails, ON, L2E 6X5 Dear Mr. lorfida: Re: City of Niagara Falis Bus Terminal We are the solicitors for Crosslink Bridge Corp. ("Crosslink") which owns approximately 44 acres of property generally located in the Buttery Street Area. ln addition, our client has also entered into an agreement of purchase and sale with the city of Niagara Falls concerning a 7 acre parcel of property adjacent to the larger property described above. Our client proposes to construct a large mixed use development consisting of commercial, recreational and tourism related facilities. Due to the proximity of our client's property to the downtown, our client proposes to create connections to the downtown and to the wider community. To facilitate these connections, Crosslink has previously produced concept pians showing the proposed development in conjunction with the redevelopment of the existing Niagara Falls bus terminal located at the intersection of Bridge Street and Erie Avenue as part of a wider inter-modal transportation facility which will benefit the community. In this regard, our client wishes to present its latest vision for the Niagara Falls bus terminal facility at the Council meeting scheduled for July 20, 2009. In addition, our client wishes to express its interest in the purchase of this facility from Niagara Falls should the City ever conclude it wishes to sell the facility. Such a sale could include, among other things, a leaseback or other financial arrangement with the City to ensure that its role as a public transportation facility is maintained. Would you kindly list a representative of Crosslink as a deputation at the meeting of July 20, 2009. IN addition, would you kindly circulate this correspondence to the Mayor and members of Council for their consideration. Yours very truly, AIRD & BERLIS LLP Steven A. Zakem ~ SAZ/sw cc. Ken Todd Kenneth L. Beaman 5509021.1 Brookfield Place, 181 Bay Street, Suite 1800, Box 754 • Toronto, ON • MSl 2T9 • Canada T 416.863.1500 F 416.863.1515 www.airdberUs.cnm July 20, 2009 L-2009-33 ~ ~ ~ ~ ~~r~~a ls Councillor Victor Pietrangelo and Members of the Corporate Services Committee City of Niagara Falls, Ontario Members: Re: L-2009-33 Application of section 99.1 of the Municipal Act, 2001 Our File No. 2009-142 RECOMMENDATION: That Coi~~~_cline to enact -law pursuant to tion 99.1 of th nicipal Act, 2001. That Council defer any decision on considering a by-law under s. 99.1 of the Municipal Act to allow staff to do further research and allow the solicitor for the residents to prepare a submission; and That staff be directed to assist parties to investigate alternative solutions. BACKGROUND: On June 8, 2009 Council resolved that: ORDERED on the motion of Councillor Wing, seconded by Councillor loannoni that Staff prepare report back on the applicability of section 99.1 of the Municipal Act in the Green Oakes Mobile Home situation and that Staff consult with the owner. Section 99.1 of the Municipal Act, 2001 provides as follows: 99.1(1) Demolition and conversion of residential rental properties A local municipality may prohibit and regulate the demolition of residential rental properties and may prohibit and regulate the conversion of residential rental properties to a purpose other than the purpose of a residential rental property. 99.1(2) Same The power to pass a by-law respecting a matter described in subsection (1) includes the power, (a) to prohibit the demolition of residential rental properties without a permit; (b) to prohibit the conversion of residential rental properties to a purpose other than the purpose of a residential rental property without a permit; and (c) to impose conditions as a requirement of obtaining a permit. Workin To etlier to Serve Our Comrnuni Corporate Services Department g g ry Legal Services <,-4= ~v ~ h 1- . , ~i. ~ ti'f"' e ~3~_ . . . ~ . - . .,.r_ July 20, 2009 - 2- L-2009-33 99.1(3) Restriction The municipality cannot prohibit or regulate the demolition or conversion of a residential rental property that contains less than six dwelling units. 99.1(4) Effect of building code, etc. Despite section 35 of the Building Code Act, 1992, in the event that the Building Code Act, 1992 or a regulation made under that Act and a by-law prohibiting or regulating the demolition or conversion of a residential rental property treat the same subject matter in different ways, that Act or the regulation under that Act prevails and the by-law is inoperative to the extent that the Act or regulation and the by-law treat the same subject matter. 99.1(5) Same If a permit to demolish a residential rental property is issued under this section, no permit is required under section 8 of the Building Code Act, 1992 to demolish the property. 99.1(6) Repor~ The municipality shall report statistics and other information concerning the demolition and conversion of residential rental properties to the Minister and shall do so at the times and in the form and manner specified by the Minister. 2006, c. 32, Sched. A, s. 40 Analysis: The intent of the section is to provide municipalities with the legislative authority to regulate and prohibit the demolition of residential buildings. The origins of the section can be traced back to the affordable housing policies of the provincial governments of the late 1980's and early 1990's that were embodied in the Rental Housing Protection Act, 1986, S.O. 1986, c.26. These policies required that property owners seeking to demolish or convert rental properties to other uses were required to obtain the approval of the municipality prior to doing so. In 1997, the provincial government elected to change its policies and replaced the Rental Housing Protection Act, 1986 with the Tenant Protection Act,1997, S.O. 1997, c.24. The new Act altered the emphasis of provincial regulation in this area. The emphasis shifted from preservation of buildings to the rights of tenants. Some larger municipalities, particularly the City of Toronto, wanted to maintain an emphasis on building preservation. They responded to the repeal of the Rental Housing Protection Act, 1986 by enacting Official Plan policies that imposed on building owners a regime of regulation that was virtually identical to the one created by the Rental Housing Protection Act, 1986. July 20, 2009 - 3- L-2009-33 The City of Toronto's authority to enact such Official Plan policies was chailenged before the Courts. The City of Toronto prevailed. There then ensued a large number of lengthy Ontario Municipal Board cases involving efforts to convert or demolish rental buildings. This was not a desirable state of affairs, not only because of the number, length and complexity of the cases, but also because an Official Plan is meant to be a statement of policy, not an instrument of regulation. By-laws are meant to regulate. Section 99.1 of the Municipal Act, 2001 restores to municipalities the power to regulate rental housing conversion by by-law. Of course, the by-law must still be supported by appropriate Official Plan policies in accordance with the requirements of section 24 of the Planning Act, R.S.O. 1990, c. P.13. It is the opinion of Legal Services that section 99.1 of the Municipal Act, 2001 could be used to regulate the demolition and conversion of the trailer parks. The Tenant Protection Act, 2006, which replaced the Tenant Protection Act, 1997, applies to "residential units in residential complexes". "Residential units" can include a site for a mobile home. "Residential complex" can include a"mobile home park." It would appear that Green Oaks Trailer Park is a Mobile Home Park. As the purpose of section 99.1 is to preserve residential rental properties, it would follow that the words "residential rental properties" as they appear in that section should be read as synonymous with the words "residential complex" as they appear in the Residential Tenancies Act, 2006. Every "residential complex" is a"residential rental property". As a mobile home park is a residential complex, it would follow that a mobile home park is a residential rental property. It follows that a mobile home park, such as the Green Oaks Trailer Park, could be made subject to a by-law enacted pursuant to section 99.1 of the Municipal Act, 2001. In addition, the actions of Marineland of Canada Inc., when dealing with the occupants of Green Oaks are consistent with the actions of a residential landlord serving notice of termination upon residential tenants. Having said that, Legal Services submits the following observations: Staff has canvassed approximately 30 municipalities and have been advised that only the City of Toronto has enacted a section 99.1 by-law. That by-law does not apply to mobile home parks. Ottawa has been considering enacting a section 99.1 by-law for over a year. That City is undecided on whether to proceed with such a by-law and as to whether or not the by-law would apply to mobile home parks. The Courts are not sympathetic to municipal Councils that appear to rush into legislative decisions without the benefit of any reflection, study or consultation with the persons likely to be affected by a by-law. It is, therefore, recommended that Council be cautious in exercising legislative authority in this area without having the benefit of analysis of the likely impact of the by-law upon the citizens of the municipality. Further, the law does not permit a by-law that is, or appears to be, targeted at a certain individual. A by-law must be of universal application and apply equally to all persons of the same circumstance. Therefore, it is recommended that if Council chooses to enact a by- law, the by-law apply to all residential rental properties of six or more units. The by-law should also include specific criteria to guide Staff and Council in the July 20, 2009 - 4- L-2009-33 administration of each application. An allocation of funding and resources, together with a comprehensive administrative plan would demonstrate the good faith of the Council in its exercise of its powers as set out in section 99.1. Staff estimates the cost of such a study to be at least $75,000.00. The by-law would also require that Council set up an administrative regime in order to comply with the requirements of subsection 99.1(6). It is recommended that Council be provided with an estimate of the cost of this regime before the by-law is passed. As instructed, Staff have met with representatives of the owners of the Green Oaks Mobile Home Park, Marineland of Canada Inc. The information provided by the owner at that meeting is set out in the attached correspondence from the solicitors for Marineland of Canada Inc. Staff has no information that would indicate that Marineland of Canada Inc. has not complied with the requirements of the Residential Tenancies Act, 2006. However, in any event, Staff would recommend that issues between landlord and tenant should be left to The Landlord and Tenant Board. The Landlord and Tenant Board is a tribunal specifically created to hear and resolve disputes between landlords and tenants. The correspondence from the solicitors for Marineland of Canada Inc. raises the issue of the retrospective application of a section 99.1 by-law to the Green Oaks Mobile Home Park. Generally speaking, there is a presumption against any law having retrospective effect. Stated another way, the law presumes that the legislature (in this case, the City Council) does not intend to take away existing rights. There is no question that a court considering a challenge to a section 99.1 by-law enacted in the immediate circumstances would carefully examine the by-law and rationale for the by-law. The onus would be on the City to demonstrate that Council intended the by-law to apply to a situation in which notices to terminate the tenancy had already been served. The City would also be called upon to prove that the Ontario Legislature intended to grant the power to Council to enact a by-law that achieved this intent. Legal Services submits that the second of these issues will present a significant challenge. Sumrtiary: In summary then, while section 99.1 of the Municipal Act, 2001 on its face sets out a power with which Council might enact a by-law that prevents the closure of the Green Oaks Mobile Home Park, the rules of common law governing the exercise of such a power are such that Council should either decline to exercise the power, as recommended by Staff or, should Council wish to proceed with a section 99.1 by-law, that Staff be instructed to carry out a City wide study of this issue. Recommended by: ~~/°~~%Q'-~~,,~- Ken Beaman, City Solicitor A roved b : pP Y K. E. urden, Executive Director of Corporate Services Respectfully submitted: Ken Todd, Chief Administrative Officer Attachment f,-.,-.,:. i. r~ . e~.:.:~:- :i,a,::,. ?n,;~.-,:_ . . ~ ~ ~ ~ 3 , ~ ~ . i ~ - : , : _ ~ ! j ( A I . ,3 July 10, 2009 Via E-miail to ?cbean~an cr,inia~ai•afalds.ca Please reply to St. Calharines o~ce Mr. Keruleth L. Beainan, City Solicitor City of Niagara Falls City Hall 4310 Queen Street Niagara Falls, ON L2E 6XS Dear Mr. Beamaii: Re: Mari~neland of Canacia ~~tc. and G~•een Oalcs Mobile I~o~ne ]Par•k Our Fiie No. 713SS We act as solicitors far Marineland af Canada Inc. with respect to tlie tez~nination of tenancies of the tenants of Green Oaks Mabile Home Park. It is ou~• understanding that Council has passed a Motion directing "that staff pz•epare a report on the appticability of Section 99.1 of the 11~Ii~t~icipul Act, 2001 in the Green Oaks Mobile Home sih~ation and that staff consult with the owner". It fS OL1T fi2rther unclerstanding that this matter will be considered by the City Council at its meeting to be held on Juty 20, 2009. In. anticipatian of the preparation of a report to be presented ta City Council on July 20, 2009, we wish to offer to you the following obse~vatians which we tz•ust }~ou will include in ~rour report to City Council. 'We wili reiterate these points in our subznission to City Council on July 20, 2009. 'Fhe Property The property is located on the west side of Stanley Avenue in tl~e Ciry of Niagara Falls. It is ii7eguiar in shape. 'Y'enancies Tlie property has been occupied by fo~~ly-seven mobile 11ome t~nits. The mobile hame units az~e owned by the occupants. The units are located on pa~•cels of land which are leased to thenl by the owner of the mobile home park. 40 Queen Street. P. O. Box 1360, St. Catharines, Ontario 1,2R dZ2 Telephone: 905688-6655, Focsimile: 465688-5814 4781 Portage Road, Niagara Falls, Ontario L2L' 6k31 Telephone: 905357•0540, Facsimile: 905357•0501 «ti~~v.su 11 i ~~an~sn ahonay.com V.F. t~4uratori, Q.C. P.D. Bedard T.A. Ric6ardson P.A1. Sheehan W.B. t~icF:aig J. DaIEaE D.A. Goslin J.M. Gotfli R.B. CiiEliton J.R. Bush P.A. t~lahonay B.A. Macdonnld h4.J. Bonomi G.W. McCann S.J. Premi C. D'Angelo R. Vacca T. Wall K.A. Book B.J. Troup A4.F. Adams L.K,Yarsons C.J. Bitite l.P. h4aloney S.G.1Ve11s Of Counsel (Cammercial Law): M,D. Kriluck Page 2 Marinelacid of Canada Inc. acquired the park in December 2003, When the park was purchased, ~ tenants ~~ere each affered a one-year lease. Those leases have now expired and all tenants are an a manth-to-mQnth basis. '.~'eranea~ation of the'~'enancies O~i Febraaiy 23, 2009, Marineland of Canada Inc. sent lettei•s to atl of the tenants of G~•een Oaks Mobile Home Park advising thein that Green Oaks Mobile Home P~rk was closing at~d that their tenancies were being terminated. Those letters clearly outlined the rights of the tenants in relation to tlie closure of the park and tlie te~~mination ot'theii• te~iancies, The tex•mination of these tenancies was cai~t~ied ot~t in strict compliance with the provisions af the Resrde~ttiul Ter7ancies Act, 200b, In pai~icula~•, Section 164 of the Act applies specifically to moUile home pa~•ks. It provides that if a notice af termination of a tenant who owns a mobile hame is given ttnder the Act far tlie purposes of co~iverting the properly to a use for a puipose other than residential use, then tlie lan:dlord inust give the tenant at least one year's notice, and the landlord rnust aft'e~~ the tenant campez~sation in atz annount equal to one yea~•'s rent oc• Three Thousand ($3,000) Dolla~•s, whichever is the less. Tn tl~is case, Marineland l~as given to the tenants eighteen months' notice and is offering the tenants each Th~•ee Thousand ($3,000) Dollars in compensation. The tenants have until August 31, 2010 to move their traiters off of the sites that they are presently leasing from Marineland. We are atlvised tl~at seven tenants have now vacated the pretnises. ~ne tenant ~•eraoved the trailer o~vned by the tenant ~vhile si.c ~ave abandoned their h•ailers which have since been vai~dalized. Those trailers will sho~~tly be removed froia~ the site bS~ Marineland. Marineland has bee~i advised that anothe~• fouz• to five te~~ants will leave before the end of the su~zuner. ~'~ani~img Controls The subject property is designated Ir~dt~strial in the Cify of Niagara Falls Official Plan, Scheduie `A'. Schedule `A' shows four notations along the west side af Stanley Avenue fo~• Special Policy Al•ea No. 25, Special Polic~ Area No. 25 is shown on Schedule `F' to the Offcial Plan. Special Polic}~ Area No. 25 affects those lands sl~own on Schedule `F' whicli az•e owned by Marineland. Policy 14.25 of the Official Plan addresses Special Policy Area Na, 25. It specifically states that Special Policy Area No. 25 shall apply to those ~ands on the west side of Stanley Aven.ue awned by Ma~~ii~eland aiid shown on Sclied~ile `F'. Policy 14.25 goes on ta say that: "Notwitl~standing tlie Indusn•ial designatian on Schedule `A' - Future Land Use Plan, these lands sha11 be subject to the policies of Pa~~t 2, Section 6- The~ne Park - Marinelatid designation. The lands shall be used for the office and service buildings ancill~ry to the Mari~ieland aperations, Such uses ai~e to be an integral part of rl~e Marineland theme park. A specific zone will be established in the Zoning By-law for sL~ch uses and tha expansion of this area shall be by amendment." Page 3 Tke subject lands are not currently shown on Schedule `F'. Hor~vever, the lands lie between parcels which are awned by Marineland and ai~e shown o~~ Schedule `F' aud which are subject to #he Marineland designation. 1'olicy 14.25 clearly co~~te?nplates "the expansion of this area The subject lands are zoned Prestige Industrial. The lands to the noi~th and the soutl~, on the west side af Stanley Avenue, are also zoned Pi•estige Indush•ial, while the lands sui~rounding the rear of the ~nobile home park are zoned General Indust~~ial. The zoning provisiox~s on the subject land contain an excepti~n whiclZ provides that none of the p~•ovisions of the Prestige Industrial zone shall pi•e~c~ent the use of the laud foz• the purpose of a n~obile hotne paz•k containing not m~:oz~e than fifl~~ mabile I~omes. ~ Submissions ~wi#9~ Respectr ta tlne Proposed ApplicabiB~ty of Section 99.1 of the Mrr~ticip~cl Acf, 2001 i~~ tl~e Greem Oaks Mob61e Hotaie Situation 1. The resolution of Council dit•ectiiig that a i•eport be prepared specifically asks that the ~~epai~t address tlie applicability of Section 99.1 of the Mirnicipad Act, 2001 in the Green Oaks Mobile I3ome situatian. To pass a by-law tmder• Section 99.1 applicable only to the Green Oaks Mobile Home Park ~voi~td clearly be disc~•iminatoiy and wa~~ld be open to being struck down by tlie courts on that basis. If the rnunicipality wishes ta pass such a by-law and wishes to avoid a challenge to the by-law an the basis of discrimination, it will have to pass a by-law which is applicable to all residential rental p~•opez~ties in tl~e City of Niagara Falls. In orde~• to avoid a challenge an the basis of discrimination, it will be necessaty for the by-lavv to iuclude te~~~ns applicable to all residential rental propec•ties in the City of Niagara Falls. In oui• opinion, the Cify of Niagara ~'alls, in passing a general by-law under Section 99.1, shouId provide justi~cation fo~• the need for such a by-law, The advice whicll we have Y•eceived fiom CMHC indica#es that the vacancy rate in Niagara Falls currantly stands at 5.2%, a veiy liealthy vacanc~r rate. We are not awa~•e of any justification fot~ tlie imposition of a by- law undez• Section 99.1. 2. As noted above, the termination af tenancies has coirunenced in accordance with the provisioi~s of the Residentr'al Tena»cies Act, 200b. Certain tenants have already vacated #he prexnises while othez• tenants are propasi~ig to da so by the end of the sununer. The imposition of a by-law under Section 99.1 of the Mtrnicipal Act, 2001 at this stage of the p2•oceedings would be an attempt to impose tl~e by-law reti•oactivel~~ on a pi•ocess already begun. In ouz~ view, a by-Iaw of this nature catulot be made reri~oactive. In any eve~it, ~ZOt only the owner, Ma~~ineland of Canada Inc., but also a numbe~• of tena?1ts liave plannec~ theii• fiztu~~es based on the notices which have been lawfully given under the Resiclential Te3aancies Act, 2006. The creation of a by-law under Section 99.1 of the 1t~Ii~nicipal Act, 2001, given that it must be ~pplicable across the entii•e City, wilL require a g~•eat deal of study and consideration. In the meantizne, the notification to the tenants continues to run. Please note that the notice given under the Residerrtral Tencrncies .4ct, 200b is eighteen months, rathe~• than the twelve rmontlis required by the statute. It would be unfoi~tunate indeed if the municipality attempts to take advantage of the fact that Marineland has given a greatei~ notification period than is requiz•ed by the sta#ute. Page 4 3. Section 24 of the Plc~n»i~~g Act provides, in pai~t, that where an Officzal Plan is in effect, no by- law shall be passeci for any purpase that daes not confoi7n with the Off"icial Plan. This provisian applies not only to by-laws passed under the Pla~znrngAct but also to by-laws passed unde~• the Mirnici~trl Act, 2001 as is evidenced by the recent decisian of the Superior Coui~t in St. Catharines with respect to the lease of the Melville Street dock in tl~e Town of Niagara-on- the-Lake by the Tor~vn of Niagara-on-the-Lake to Whi~•Ipool Jet Boat Tours. As noted above, #he subject lands are designated Prestige Industcial. Those lands are also subject #o Special Policy Af~ea No. 25 and #he provisions quoted above of Policy 1~.25. Polic}~ 1~.25 clearl}~ con#eznplates the expansion of the Special Policy Area which is intended to e~~cotuage the enlargement of services foi• the Marineland development. The imposition of a prohibition af tha conversion of this ~•esidentiai ~•ental property to a pu~~ose other than tlte purpose of a residential rental property would be cantraty, in olu• apinion; to the provisions of tlie Officzal Plau which cle~•ly conten~plate the enlargement of Special Policy Area No. 25. Fnrther, the trailer park eise is not a use recognized in the pravisions of the Official Plan found in Section 9 with respect to the industt•ial area. Tl~e use af the trailer park on Prestige Industrial lands inay be considered to be a non-coinplying use. Section S of the Official Plan contains policies with respect to non-coinplying uses. ~n our opinion, the cur~•ent zoning which permits the mobile hon~e park as an exception to the Prestige Industrial zone does not comply with fhe provisions of Polic~ S.1 of the Official Plan, specifically Policies 5,1.3 and 5.1.4. In our opinion, the continued ~.ise of these lands for a mobile liome park, does contribute to an urban renewal problern by virtue of being associated with the dete~~ioz•ation of buildings and the lack of mailltenance. Fui~ther, the use does interfere with the desirable development in adjacent ai•eas that are in confarxnity with the plan. With ~•egard to the second point, the coiitinued use of these lands for residential pu~•poses will in~pact on the abil'zt~~ of the owners of adjacent properties to use their lands within tlie provisions af the Off'zcial Plan, for industrial puz~poses, because the Minishy of tlie Environment D-6 GuideIines impose setbacks for industrial uses fi~om sensitive land uses such as ~•esidential, Co~iclus~on For the reasons set out above, we believe that any by-law passed pursuant to Section 99.1 of the Mirnicrpal Act, 2001 for the purposes of inte~•fe~•ing in the curre~it process undez• tY~e Residentic~al Tenancies Act, 2006 on the lands of Marineland of Canada Inc., currently lcnown as the G~•een Oaks Mobile Home Park, would be t~nlawfiil and open to challetlge in the coi~z~ts. We a.re instructed ta advise that Marineland of Canada Ine. will challenge a~1y atte~npt to interfere in the lawful process wllich is cui~•ently proceeding under the Residential Tenancres Act, 2006. Page 5 TllarilC yOll f0Y ~8I7111tt1Tt~ llS t0 O~feT our thoughfs to you o~l this ~natter. Yours veiy tr«ly, SYJ~I~~VAN, IYIA~IfON~Y L~P ]Pex•: ? '~'laon~as A, Ricl~a~dsan :sm cc-Mr. John Cloler, Marinel~nd of Canada Inc. cc-Ms.'I'r1c~- Sietiva~t, Marincl~nd of Cannda Inc. Y53,aS_' ~!~:r~...z~n~ :~.3r.r.3~. t'~,~.i.f.:~...-r"Ys~:$.-:..-.~-~i Y.,a..:;t~,. .F'~' . c.:;:c ~ ~ ~ .s~~:~F;'i*-...,.:..i: '4- , r_y~, ..~,;.~.?~r~~.'_3. . . E 4~ r..o.: ._s3 July 14, 2009 Via E-mail to clio~'ftf~fl(l/~,I11Agfli•afalls.ca ' Please Re~ly io SJ. Cullrarl~res ~~ce Mr. Deau torfida, Clerk City of Niagara Palls City Hall , 4310 Qttee~i Street P.O. Box 1023 Niagara Fails, ON L2E 6X5 Dear Mr. lorfic€a: Re: Marineland of Canada Inc. and Green Oaks 1VV~obile ~dome PaY~k Ou?• k'ile: 71355 We act as solicitors for Macineland of Canada Iuc, with a~espect to a report on tl~e possible utilization of Section 99. I of the Mtrraicrpal Act, 2001. It is aur understanding fhat a repoz~t fi~om the City Solicitor ~vill be pi•esented ta the Cou~icil Sitting in Commitfee of tl~e Whole on Monday, July 20, 2009. The put•pose of this letter is to rec~uest an oppo~~hinity for tlsis write3• to addcess the Council Sitting in Committee and to respond to questions which the Co~inciI in Committee may have. Thank you for your co-opecation i~i this matte~•, Yours veiy truly, SiJL~IVAN, MAI301VEY L~.,P Pert \ f Tlto~nas A. Ric3~ardsoat TAR;sm ec-Mr. Keaueth L. Beaman, City Solicitor co---Mr. John Holer, Presidefit, Marina(and of Canadz Inc. cc- Ms. Tracy Ste~vart, Director of Administration, Marineiand ofCanada Inc. cc-Mr. Thomas ti~all QO Quecn Street, P. O. Bok 1360, St. Cathannes, Ontario L2R 622 Telephone: 905G88•6655, Facsimite: 40f688-5814 4780 Porta~a Road, Niagara Nalls, Ontario L2E 6A8 Telephone; 905357•0500 Facsimile; 905~357-OS01 V.F. Muratori, Q.C. P.E3. I3edard T.A. Richardson P.M. Sheehan ~V.B. MeKaig 1, paflal D.A. Goslin J.~7. Gotdi R.13. Culliton J.R. Bush . P.A. Mahoney B.A. t~4acdonald M.J. E3onomi G.W. McCann S.J. Premi C. D'A~geto R. Vecca T. 1Vell K.A. Dook B.J. Troup M. Adams L.K. Parsons C.J. BitUe J.P. Maloney S.E.1Vells h9. Atherton OfCounsel (Commerciel Law): M.D. Kriluek I July 20, 2009 CAO-2009-01 < - ~ ~ `v~~M .,e ~1~ ~ Councillor Victor Pietrangelo, Chair and Members of the Corporate Services Committee City of Niagara Falls, Ontario Members: Re: CAO-2009-01 Process Related to tG~e E~o~@y E2etirer~ent Incentive Option RECONEEVIENDAT'IOYV: 1) That staff strengthens In Camera procedures and ensures a detailed reporting of what transpires for any closed meeting session. 2) That in the absence of the City Clerk, due to Personnel matters, proper procedures be put in place to provide compliance with the IVlunicipal Act. 3) That any similar early retirement program under consideration in the future be presented to Council outlining, in detail, the program criteria. 4) That staff liaisons on Council advisory committees be reminded of their responsibility to bring forward the committee's recommendations for Council consideration, especially if these recommendations are substantive in nature. 5) That future Human Resources-related matters are dealt with by the Corporate Services.Committee. - - 6) That the Human Resources 'CommitteP continue to act on an "Ad Hoc" basis for special assignments, such as CAO performance review. BACKGROUND: At the Council meeting held on June 29, 2009, Council passed a motion requesting that staff be directed to come back with a public report on process surrounding the Voluntary Exit Program and any savings realized from the Program. This report addresses that motion. In Camera on February 29, 2007, Mercer Delta Consulting presented its findings and recommendations on the organizational design and the administrative structure to Council. The recommendations included key changes to the organizational structure that included the filling of the Executive Directors' vacancies, integrating Transit services into the organizational design, By-law Services reporting to the City Clerk and reducing the span of control of the Chief Administrative Officer. The report'also recommended developing organizational values and operating principles and establishing a process for evaluating the Chief Administrative Officer. id'orking Together to Serve Our Community July 20, 2009 - 2- CAO-2009-01 This report was followed up through an In Camera discussion with Council and the CAO on February 26, 2007 to discuss the staffing implications. The recommended changes included promotions and changes in organizational design. While the reorganization was not intended to increase the staff complement, the related staffing changes would increase the salary and labour costs by filling some of the vacated positions and promoting staff to higher salary ranges. To offset these changes and save money, staff proposed to accomplish these changes by a series of ineasures including: ? OMERS early retirement incentive options ? Internal repositioning ' ? Phased implementation of some positions > Utilization of funds previously allocated to manage the People Mover project It was estimated that these strategies would result in some net savings to the Corporation and the organizational implementation plan was formally approved at the IVlarch 19, 2007 meeting of Council. Following these meetings with Council, and with the approval of the Chief Administrative Officer, the Director of Human Resources developed the early retirement incentive exit option in March 2007 that was similar to two previous programs designed a few years earlier in Fire Services and with Senior management sfaff. In this particular case, however, voluntary "separation" agreements were being offered and inclusive to all non unionized staff. This program was completely voluntary and intended to financially assist those who were considering retirement and at an age/service level to take advantage of OMERS early retirement factors. From the Corporation's perspective, the program offered an opportunity for organizational renewal and to provide labour savings to offset the costs associated with the changes in the organizational review. Retirements for those individuals who were eligible were intended to commence by September 1, 2007. However, many.of these individuals were unable to coordinate their retirement plans, along with the demands of their work responsibilities on short notice and requested deadline extensions. The matter was discussed at the June 11, 2007 meeting of the Human Resources Committee: At that time, the majority of eligible and interested individuals indicated that they would.not be able to finalize their plans and comply with the original retirement deadline of September 1, 2007. As the initial deadline had been established in an arbitrary fashion, staff recommended that the departure deadline be extended for another year to September 1, 2008. This extension of time would allow all the eligible participants more time to organize their retirement planning and for the Corporation to achieve all the intended financial saving in the program. This recommendation was approved by the Human Resources Committee. Ifthe dates had not been extended, it was believed that the financial objectives of the City would not have been achieved. At the November 12, 2007 meeting of the Human Resources Committee, staff recommended that the departure be extended to December 2010, in order to coincide with the Council term. As with the earlier extension, this was done to allow additional time for the interested and eligible persons to officially depart and conduct their retirement planning preparations and for the organization to achieve its intended savings. As it turned out, the extension to the end of the Council ferm was not necessary as the last participant retired in February 2009. July 20; 2009 - 3- CAO-2009-01 Purpose and Results of the Early Retirernent Incentive Option To provide appropriate context, it is necessary to explain why the Early Retirement Incentive Option was proposed and implemented. The Organizational Review, prepared by Mercer Delta Consulting, was proposed to comprehensively assess the City's administrative structure and processes, evaluate all options to improve the organization's efficiency and effectiveness, and ensure the most effective use of staff and municipal resources. In keeping with the purpose, the IVlercer Report proposed a number of key changes to the organization's structure. While the reorganization was not intended to increase the staff complement, the related staffing changes would increase the salary and labour costs by filling some of the vacated positions and promoting staff to higher salary ranges: The March 19, 2007 report to Council outlined the funding required to accomplish the organizational review objectives and would be achieved through a series of ineasures including an early retirement program. The early retirement program was designed to be a voluntary separation agreement offered to all non union employees who met the eligibility criteria and consisted of the financial incentive package of two weeks per year of service up to a maximum of 26 weeks and retiree health benefits. Payments could be redirected to a tax-sheltered RRSP. To be eligible, employees.needed to be near or at 55 years of age and eligible for an unreduced early retirement option under OIVIERS (29 years of service or more). Qualified employees were asked to provide expressions of interest to the Director of Human Resources by March 30, 2007. The program was posted on the City's intranet bulletin board and eligible staff was provided information letters from Human Resources. All requests or inquiries made by employees were treated on a confidential and without prejudice basis and the City reserved the right to accept or refuse any request based on reasonable operational and budgetary considerations. The names of individuals were not brought forward for Council's consideration or information. A total of eight persons participated in the early retirement incentive program. The Early Retirement Incentive met the intended objective and an initial savings of $216,000 was achieved. As a result of the program, three (3) positions were eliminated and a total annual salary savings of close to $340,000 (based on 2009 rates and including benefits) is achieved on an annualized basis commencing in 2010. Program Irnplesrnentataon ar~d Process The openness and accountability provisions of Bill 130, which amended the Municipal Act, have made municipalities more cognizant of their In Camera procedures. The City of Niagara Falls is no different. Over the last few years a number of improvements have occurred with regard to In Camera procedures. Resolutions going In Camera are much more detailed, internal In Camera minutes are more specific and the use of the laptop and projector outlining the recommendations and the course of action on items (i.e., for ratification versus-direction to staf~ has limited confusion. A review of the files indicates that there~ is a lack of recorded documentation of what occurred during the February 19 (presentation on Organizational Review) and February 26 (implementation discussion between CAO and Council). July 20, 2009 - 4- CAO-2009-01 A detailed report was presented in open Council on March 19, 2007. This report was the articulation of the discussion on implementation from the February 26/n Camera meeting. There is no written evidence indicating that there was an expectation of further reports on the implementation of the Mercer report or on the Early Retirement Incentive Program. Moving forward, it is recommended that staff sfrengthen In Camera procedures and ensure there is a detailed reporting of what transpired at any closed meeting session, including the education sessions contemplated under the Act. If the In Camera matters are of a personnel nature where the Clerk is not in attendance, proper procedures will be put in place to provide compliance with the IVlunicipal Act. At the Council meeting held on June 29, 2009, Tom Richardson, Sullivan Mahoney, provided Council with In Camera legal advice on this program. His comments on process are helpful and bear repeating. In his written opinion, Mr. Richardson stated "although the program was reported to Council, it was not formally authorized by Council." Mr. Richardson did indicate that the report presented to Council on IVlarch 19 could be viewed as the requisite Council approval of the program and that staff involved in the implementation of the program viewed this as their authority to proceed. The Director of Human Resources felt that he had been given his direction to proceed with the offering of the program after the February 26 In Camera Session. The details of the program were not presented to Council. Staff now believes that the criteria should have been presented at that time. For the record, the criteria used to be . able to take advantage of the pro;gram was to: • be at or near 55 years of age and eligible for unreduced early retirement option under OMERS (at least 29 years of service or more) • be employed in any non-unionized position • have at least 10 years of service with the City of Niagara Falls • commence early retirement no later than September 1, 2007 • financial incentive of two weeks pay per year of service, up to a maximum of 26 weeks pay plus benefits. ~ It is recommended that, in the future, any similar early retirement program under consideration be presented to Council outlining, in detail, the program criteria. Hurnan Resources Cosnr~ii#ee Process The Human Resources (HR) Committee was instituted in 2007, on a one-year trial basis, to provide recommendations to Council on a variety of Human Resources policy and strategic direction. As outlined in the chronology, recommendations for extensions to the Early Retirement Incentive Program were twice brought forward to the HR Committee. The purpose for the extensions was justifiable. The cost savings contemplated by the program were not being realized by the proposed end date of the program (September 1, 2007). Only one staff person had given indication that they would retire by the original deadline date. Many of the eligible individuals were unable to coordinate their retirement plans, along with fhe demands of their work responsibilities, on short notice and requested deadline extensions. July 20, 2009 ~ - 5- - CAO-2009-01 Staff recommended to the Human Resources Committee that the departure deadline be extended for another year to September 1, 2008. This extension of time would allow all the eligible participants more time to organize their retirement planning and forthe Corporation to achieve all the intended financial savings in the program. This extension was approved by the Human Resources Committee. At the November 12, 2007 meeting of the Human Resources Committee, staff recommended that the departure deadline be extended, a second time, to December 2010, in order to coincide with the Council term. As with the earlier extension, this was done to allow additional time for the interested and eligible persons to officially depart and conduct their retirement planning preparations and for the organization to achieve its intended savings. The extension to the end of the Council term was not necessary, as the last participant in the program retired in February 2009. The financial objectives of cost savings through the reorganization would not have been achieved without the deadline extension. Nonetheless, the HR Committee recommendation should have been advanced to Council for ratification. The language of the terms of reference of the Committee clearly outlines that it will "recommend" to Council, similar to other advisory committees. Councils did not delegate any specific decision making authority to the HR Committee. In retrospect, the recommendations of the HR Committee should have been brought forward to Council for approval. The rationale behind the extension of the program was justifiable. Also, had the request for extensions been brought forward to Council, staff would have been apprising Council on the status and success or failure of the program. It is recommended going forward that staff liaisons on Council advisory committees be reminded of their responsibility to bring forward the committee's recommendations for Council consideration, especially if these recommendations are substantive in nature. Also, with the recent hiring of the CAO and completion of the Early Incentive Retirement program, it could be argued that the HR Committee has fulfilled its mandate and staff would recommend that future HR-related matters be dealt with by the Corporate Services Committee. It is also recommended that the Human Resources Committee continue to serve on an "Ad Hoc" basis for special assignments like the CAO performance review. Conclusion: The Early Retirement Incentive Option was offered to all non unionized staff who met the program criteria to realize cost savings in light of the recommendations of the organizational review. With the last eligible staff person availing themselves of the program this year, the program has proven effective meeting the objectives of cost savings. In retrospect, the implementation of the program could have been handled better at an administrative level. The criteria of the program should have been formally endorsed and all extensions to the program should have been formally approved by Council. July 20, 2009 - 6- CAO-2009-01 The concerns expressed throughout this process and the recommendations contained in this report will be helpful in the implementation of similar programs in the future. Respectfully submitted: Ken Todd, Chief Administrative Officer " r~~ - The City of Niagara Falls, Ontario 1Zesolution No. 1Vloved by Seconc~ec? lby W~IEIl~EAS all meetings of Council are to be open to the public; and W~~I2EAS the only time a meeting or part of a meeting may be closed to the public if the subject matter falls under one of the exceptions under s. 239(2) of the Municipal Act, 2001. TI~E~FO~ BE gT I~SOI,VE~ '~'HAT on July 20, 2009 Niagara Falls Council will go into a closed meeting to consider matters that fall under the subject matter of 239(2)(c) of the Municipal Act, 2001, a proposed or pending acquisition or disposition of land by the municipality, 239(2)(~ to receive advice that is subject to solicitor-client privilege and 239(2)(d) labour relations. A1VY~ The Seal off the Corg~oratioaa be hereto affxed. ~~AN ~O~t&'g~A R. ('g'ED) SA~CY CI'g'Y C'L~~ M[AX~R