for the Ottawa Land Inquiry. Image: Canadian Aviation
Hall of Fame.
During the Summer of 1953, after some back-and-forth with the Province of Ontario, the backup requested by Ottawa Mayor Charlotte Whitton arrived. On April 23, decorated aviation pioneer and lawyer Murton Adams Seymour was appointed as Commissioner for what became known as the Ottawa Land Inquiry.
The Inquiry took place – somewhat sporadically – between May 21st and July 15th, 1953 and Seymour submitted his final report on November 10, 1953. Although the Manor Park development consumed the bulk of the Inquiry’s time, issues surrounding the Honeywell Farm / Westwood Subdivision and Strathcona Heights / Mann Avenue Project were also touched upon.
When I wrote the short “Development and its Discontents” back in 2014, I did not have a copy of Seymour’s report. The following is a transcript that I prepared from a copy that I made in 2016 at the City of Ottawa Archives.
Ottawa Land Inquiry
Report of the Commissioner,
M.A. Seymour, Esq., Q.C.
--------------------------------
Counsel - Gordon C. Medcalf, Q.C. - for The Corporation of
the City of Ottawa and as Counsel for the
Commission.
A. Warwick Beament, Q.C., for himself, R.B. Hutton
with him, Manor Park Realty Limited, Manor Terrace
Limited, Manor Gardens Limited, Manor Park Shopping
Centre Limited and Dennison Houses Limited.
Samuel Berger, Q.C., D.R. Snipper with him, for
Dr. Charlotte Whitton, personally and as Mayor of
the City of Ottawa.
Lorenzo LaFleur, Q.C. - for Miss Clair E. Gosselin
and Edouard Viau.
Mrs. Eileen Mitchell Thomas - for several property
owners.
This is an Inquiry under The City of Ottawa Act, 1953, under the authority of which I was appointed, by and Order-in-Council dated the 23rd April, 1953, to inquire into or concerning,
(a) the land development of development in that area
of the City of Ottawa known as Manor Park, both to
the east and to the west of St. Laurent Boulevard,
and both the existing developments and any projected
extension thereof;
(b) the Honeywell Farm Development, in relation to the
general principles laid down in a report dated 20th
March, 1953 submitted to the Board of Control by a
Committee of Civic Officials known as the Honeywell
Farm Subdivision Committee, and the general principles
underlying the agreement dated the 7th day of April,
1953 entered into between the City of Ottawa and the
developers of the said development with a view to
obtaining findings
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to guide the City's policy in future major land
developments; and
(c) Strathcona Heights Development, also known as Mann
Avenue Project.
The Inquiry was opened in Ottawa on May 21st, during which certain exhibits, consisting of excerpts from Council Minutes, By-laws, Plans, etc., were produced and filed. It was then adjourned to permit of the return to the City of Her Worship Mayor Charlotte Whitton.
The Inquiry was resumed on June 22nd, 23rd and 24th, but was adjourned to July 6th as Mayor Whitton was not ready to give evidence, was then resumed and continued through July 6th, 7th, 8th, 9th and 10th. It was again resumed on July 13th and was continued through the 14th and 15th, at which time the taking of oral evidence appeared to be completed.
Altogether eighty exhibits have been filed. Since the hearing I have been engaged in a careful examination and study of the transcribed evidence and the exhibits, in conference with the Department of Planning and Development of Ontario, and with analytical and economic studies made for me by Mr. D.B. Mansur and Mr. P.M. Secord of Central Mortgage and Housing Corporation.
The Inquiry has two aspects, the first being the Manor Park development, and the second, while directly concerned with the Honeywell Farm Subdivision and the Strathcona Heights development, being an examination into, and a consideration of, the methods and procedures adopted by the Board of Control and the Council, of the City of Ottawa, for the control of subdivision development and the establishment of principles upon which agreements with the subdividers should be based.
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The Manor Park development consists of subdivision and re-subsivision of areas of land, lying to the west and east of St. Laurent Boulevard, in that part of the Township of Gloucester that was annexed to the City of Ottawa as of January 1st, 1950. The development commenced in 1947 as a result of an agreement, Exhibit 3, dated the 15th day of April, 1947, between The Corporation of the Township of Gloucester and Manor Park Realty Limited. This agreement is signed on behalf of the Company by A.W. Beament, Esq., Q.C., as President, and R. Bruce Davis, as Secretary. These two gentlemen appear to have been the originators of the development, and the active developers, although others were associated with them as shareholders and officers of the Company. There are a number of other companies that became interested in the development, several connected with one another by interlocking directorates, namely, Manor Gardens Limited, a company promoted jointly by Peerless Housing of Canada Limited and Manor Park Realty Limited; Dennison Housing Limited, having common directors with Manor Park Realty Limited; Manor Park Shopping Centre Limited, the shareholders of which are the same as shareholders of Dennison Housing Limited; Manor Terraces Limited, incorporated specifically for the development of a shopping centre. Alvin Enterprises Limited, however, is an independent company that purchased land from Mr. Beament and his associates for the purpose of erecting a low rental housing development of some four hundred and eight-eight housing units. Peerless Houses of Canada Limited, another company active in building houses in the Area, is also independent from the other Companies, the shares being held by a number of United States citizens. Mr. Beament appears to have done legal work for these two Companies but has no other connection with
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them.
The fact that Mr. Beament and Mr. R. Bruce Davis were shareholders and officers of several of the Companies, and that several of the companies, namely, Manor Park Realty Limited, Manor Park Shopping Centre Limited, Manor Park Gardens Limited, Manor Park Terrace Limited and Dennison Houses Limited, were associated in the development of the area, seems to have given rise to suspicions of wrong-doing. I find no ground for any such suspicion. There is nothing wrong, legally, ethically or morally, with a number of companies being incorporated to develop different parcels of land in the same general development, except, that may be, it might lend to inflationary possibilities. It seems to me, however, essentially a matter for the judgment and discretion of the parties interested as to whether they operate under one or a number of corporate entities and names.
I want to say here, having examined the Manor Park development on several occasions, that I think Mr. Beament and his associates and companies, and Peerless Houses of Canada Limited and Alvin Enterprises Limited are to be complimented for the types of housing erected, the character of the buildings, the layout of the streets and grounds, and generally the manner in which the whole area is being built up. It is very attractive. Some fourteen hundred housing units, ranging from single houses to bachelor suites in apartment buildings, have been built since the spring of 1947, and I think that the City of Ottawa and its inhabitants are fortunate in having had a group of aggressive men to develop such an excellent housing project.
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Mayor Whitton's report of December 15th, 1952, to the Board of Control and the Council dealt with a number of matters which Her Worship considered should be investigated, and as this Inquiry seems to have stemmed from that report, I propose to deal with them, separately, on the basis of the report and her oral evidence in connection with it and later deal with the rest of her oral evidence.
It is perhaps unfortunate that I proceeded on June 22nd, as arranged with Mayor Whitton early in May, when I learned on that day that Her Worship's other civic duties would prevent her from giving evidence for some days, but with witnesses subpoenaed, the reported engaged and present, no to speak of Counsel and myself, it seemed more sensible to proceed. Had I waited, the oral evidence might have gone on in a more orderly fashion and the documents and letters that kept turning up all during the hearing in July might have been discovered earlier.
It was not a matter before me but I cannot refrain from commenting that the filing system of The Corporation of the City of Ottawa is sadly in need of overhauling. Whether it is due to the cramped and inadequate City Hall accommodation, or because the so-called "dead" files are stored some distance away in the market building, or just a very poor system, I do not know, but letters and documents pertinent to the inquiry seemed not to be available to Her Worship or Counsel prior to the hearing and, as I have said, kept bobbing up at odd times. I can well understand that Her Worship had great difficulty, and apparently, in some instances, found it impossible to get correct information or full information or, sometimes, any information from City Hall. It is a matter within the competence of the Board of Control and Council, and certainly should be remedied. Had full and correct information been available to Mayor Whitton
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her report to Council might well have taken a different form.
The first of the matters to be dealt with, as I read the report, is the payment of taxes, water rates and local improvement rates "absorbed by The Corporation of the City of Ottawa on properties exempted from these payments by the the use by Alvin Enterprises Limited of the status of expropriation, which power of expropriation the City, having obtained from the Province, entrusted to the solicitors for Alvin Enterprises Limited, to exercise as a private corporation."
There are really two matters involved in the above quotation. One, the matter of the loss by the City of Ottawa of tax revenue by reason of the expropriation of properties; and the other, the impliedly wrongful use by Alvin Enterprises Limited of the powers of expropriation.
There are two agreements to be considered, the first being said Exhibit 3, the agreement between the Township of Gloucester and Manor Park Realty Limited, which agreement, following annexation, was assumed by the City of Ottawa, and its terms not already carried out were completed by the City in place of the Township. Under this agreement the Township, inter alia, was to expropriate privately owned properties in the area west of St. Laurent Boulevard and convey them to the Company, together with municipally-owned lots, on a price formula basis.
The authority to expropriate privately owned properties, in such circumstances, is contained in Section 17 of The Planning Act, now R.S.O. 1950, Chapter 277, which provides that for the purpose of a housing project, a municipality may, with the approval of the Minister of Planning and Development, acquire land within the municipality, hold such land and sell, lease or otherwise dispose of the land, so acquired or held, for a nominal or other consideration
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to any person or governmental authority having power to undertake housing projects, and, by Section 18, in the acquisition of such land the provisions of The Municipal Act, as to expropriate, are made applicable.
The Township of Gloucester sought the approval of the Minister of Planning and Development of the expropriation of privately owned properties for the purpose of the housing project proposed by Manor Park Realty Limited, and having obtained that approval proceeded with the expropriation. It was, in my opinion, a proper exercise by the Township, and later by the City of Ottawa, of the statutory powers of expropriation and, if I may say so, a proper exercise of discretion by the Minister.
The area involved had been subdivided, for speculative purposes, as far back as 1912, but the then schemes collapsed and the land had lain practically idle and undeveloped since. There has been very great changes in land use and subdivision planning as regards the dimensions of lots, the width of streets, the layout of streets and other matters since those original subdivision plans were registered, and the current thinking of developers and subdividers is very different from what it then was.
In order to re-design, or provide a new and modern layout of an area, it is obviously necessary for some person or authority to acquire ownership of all the lands in the area, to assemble all the separate lots, streets and allowances for streets under one ownership. Where individual lots are owned by private persons, whether they are built upon or are vacant (in this instance most of them were vacant), expropriation is an essential power,
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to be exercised with discretion of course, but essential to prevent on or more private owners refusing to sell his or their properties and thereby holding up or defeating a whole new housing project development. Such, had not the power of expropriation been exercised, would probably have happened here, and most certainly the re-development of the area would have been delayed for many months, if not abandoned altogether, because of the impossibility, otherwise, of acquiring complete ownership, necessary for a new and modern subdivision plan. This is an instance where the good of the majority is of prime importance and must over-ride the wishes and interests of the minority.
I was very much interested in the evidence, on this point, of Mr. D.B. Mansur, C.B.E., President of Central Mortgage and Housing Corporation, which housing authority has had Canada-wide experience in the assembly of land for housing projects. He said,
"I believe that that portion of the Planning Act
is absolutely necessary, but should be used sparingly.
I think that only city councils of the local
communities concerned are competent to judge as to
whether it should or should not be used. Certainly my
experiences throughout Ontario, in the municipalities of
Ontario operating under The Planning Act, there is plenty
of restraint by the municipal councils in assembling land
for housing purposes by way of expropriation. In other
words, the cases which I have seen in Ontario have lead
me to believe that the Council is clearly of the opinion
that the statutory authority should be used for the
purpose because it is essential that housing develop
in the particular area.
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Now my own comment would be this; that unless you are
going out into the very fringe areas where there is
absolutely nothing but farm acreage, it would be
virtually impossible for a good land assembly to be
done if that power did not exist in someone's hands, by
"in someone's hands" I mean either the municipality
or the Province or the Federal Government, one of the
levels of Government. I do not believe that where you
have as many as ten owners that your chances of being
able to do proper overall subdivision planning are very
good, unless at least in the background there is the
power of expropriation, but I equally believe that its
use should be tempered by the judgment of the council of
the municipality to whom the council are responsible."
I add here subject, of course, to the over-riding discretion of the Minister,
and again,
"I think that the City of Ottawa, the Council of the
City of Ottawa, were absolutely right in what they
did, because I think that the owners in that area were
given a very reasonable arbitration: they were given
reasonable offers. There would have been no possible way
for any one of them developing small plots of acreage
by themselves. I think the step taken by the City of
Ottawa was a wise one." and "I think if you ran into a
land assembly job with five owners, you would be
extremely lucky if you could make an accord, and with
ten it would be a positive miracle."
These comments apply equally to Gloucester, the initiating
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municipality.
The evidence indicates very definitely that in 1947, and succeeding years, there was a very great shortage, in Ottawa, of housing accommodation, and every authority was anxious to assist in creating new housing accommodation and in doing everything that could be done to promote rapid development. Here again I quote from Mr. Mansur's evidence,
"In Ottawa it was probably as bad as anywhere in the
country. At that time the Board of Control of the City
of Ottawa, under the chairmanship of Controller
Pickering, were extremely interested in the housing
situation. We had opened up the Rockcliffe Emergency
Shelter in co-operation with the City; we had opened an
emergency shelter at Uplands and we had buildings all
through the City in which we had emergency shelter,
probably in all about twelve hundred families in
emergency shelter. In the meantime, there was not a
very large amount of private house building going on and
very low on a national basis."
and again,
"When Manor Park was first proposed to us in 1946 we
were very enthusiastic. At that time the number of
entrepreneurs in the housing field in Ottawa was
limited. Far too few in that year were built;"
and again,
"Bearing in mind that in the City of Ottawa the
number of new housing units in considerably less than
the national average, running, oh, about six and a
half houses per thousand people as compared with
Toronto's ten, Edmonton's twenty-two and Calgary's
twenty - - -
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bearing in mind the very small volume of housing I
think we would be in quite a mess without the homes
for these thirteen hundred families that presently
live in Manor Park."
In view of all the circumstances, there can be no valid criticism of the exercise by the Township of Gloucester and, subsequently, by the City of Ottawa, of the power of expropriation by, in respect to Ottawa, not necessarily the manner, for the purposes of this housing project.
In regard to the above quotation from Her Worship's report, Alvin Enterprises Limited did not, nor did any of the developers or Companies above referred to, exercise any powers of expropriation. In all instances expropriation was effected by either the Township of the City. The developers did, of course, benefit from the expropriations, but so did the municipalities and the public at large, by reason of the very fine and extensive housing project in that area today, which is still being developed.
The agreement, Exhibit 3, is silent as to any loss of tax revenue which the Township might, or did, suffer as a result of privately owned properties (which, of course, were assessed and liable to taxation), becoming exempt from taxation, under the provisions of The Assessment Act, while those properties were held in the name of the Township. When the area was annexed to the City of Ottawa and the City assumed the agreement between Gloucester and Manor Park Realty Limited, the same situation continued.
It is perhaps convenient, here, to refer to the loss of tax revenue suffered by the City in connection with the agreement
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the City entered into with Mr. Beament, in regard to the development of the land east of St. Laurent Boulevard. There was no formal agreement, as, I think, there should have been between Mr. Beament and the City. The informal agreement is contained in the letter of January 30, 1950, Exhibit 10, and the Council Minutes of February 6th, 1950, and August 21st, 1950. I shall have more to say about the agreement later, but, in regard to the loss of tax revenue, it suffices to say that there was no reference in that letter to any loss of tax revenue that might be occasioned by expropriation.
There are three classes of property involved in the tax problem. Firstly, the lots owned by the Township of Gloucester and which, following annexation, were acquired by the City of Ottawa. The Township Assessor, I am told, disregarding provisions of The Assessment Act, did not show the Township-owned properties on the Assessment Roll. He should have, of course, and such municipally owned properties should have been placed in the exempt column. This caused considerable difficulty, after annexation, when the City Assessment Commissioner discovered the omission and had to locate the properties and insert them in the proper column in the City's Assessment Roll. The second class of property consisted of privately-owned lots owned by persons other than Mr. Beament and his associates. The third class of property consisted of those lots which had been acquired, by private negotiation and purchase, by Mr. Beament and his associates. While both the Gloucester agreement and the informal agreement between the City and Mr. Beament were silent on the question of loss of tax revenue, it seems to me that the implicit in both the agreements there is
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an obligation to indemnify the respective municipalities against any loss of tax revenue, insofar as the second class of property is concerned and especially in regard to the third class of property, occasioned by the exercise, for the benefit of the developers, of the power of expropriation.
Exhibit 2 is a series of extracts from the Minutes of the Council of the City and the excerpt from the Minutes of the meeting of February 6th, which contains Report No. 3 of the Board of Control for 1950, deals with the Manor Park development and the desire of the developers to extend their activities to the lands east of St. Laurent Boulevard. The following words are to be noted in the City Council Minutes:-
"and the developers will indemnify the City in respect
of all loss, damages and claims arising out of the
expropriation."
The word "loss", which I have underlined, covers, in my opinion, loss of tax revenue arising out of the expropriation. While the above quotation does not appear in Mr. Beament's letter of January 30th, 1950, it does seem to me that representations must have been made to the Board of Control in which the developers obligated themselves to protect the City against any loss of tax revenue, while the properties which were to be expropriated for their benefit were held in the name of the City and, therefore, placed in the exempt column in the Assessment Roll. I am conscious of the fact that these words only appear in the Board of Control and Council Minutes and not in Mr. Beament's letter and, therefore, they are not binding upon him and his associates, but I think it must have been the intention of the developers, and the Board of Control and Council so understood it, to indemnify the City against any loss
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of tax revenue on expropriated properties.
I have asked Mr. Medcalf to obtain and file a statement showing the loss of tax revenue involved in the second and third classes of property, above referred to. I asked for this as I was not satisfied that the figures contained in Exhibit 49 were accurate. This statement has not been furnished me and filed as Exhibit 80. It shows a loss of tax revenue on the second class of properties of $264.47 and on the third class of properties of $314.95, a total of $578.42. I am not as concerned with the amount as with the principle. I think the City should be paid these two sums by the developers.
I do not think that the City of Ottawa should expect or receive any compensation for tax revenue in regard to municipally owned lots. They were exempt, produced no tax revenue and never would have until sold; of this there was little or no prospect until these developers entered the area. This applies also to the Camelia Street lots.
The second point mentioned by Her Worship is her reference to "examining an absorbing series of correspondence, memos, minutes of the Board and strong protesting reports from certain of our own officials against special circumstances contrary to by-laws and practices being accorded the various enterprises of the same group of promotors." I can find little to justify the implications of this statement. It appears to be connected with a further reference in Her Worship's report where she states that "Board of Control records reveal a series of extraordinary requisitions and concessions for special considerations to these developers re building restrictions" etc., and, later, in her report, with her reference to the fact that on May 12th, 1950 the Press reported
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that the Building Inspector had issued a building permit upon certain modifications being accepted by the developers. Her Worship, there, goes on to say "whether this conformed in full to Ottawa by-law and practice, is not clear; certainly there appears to be no official report thereon in the Board or Council Minutes."
These references all appear to have to do with an application by Alvin Enterprises Limited for building permits to erect four-hundred and ninety-two low-rental housing units consisting of two and three bedroom suites and bachelor suites. Alvin Enterprises Limited had negotiated with the Township of Gloucester, prior to annexation, in regard to the erection of these apartment buildings, and had submitted plans that had been informally approved by the Township authorities, and also, by Central Mortgage & Housing Corporation which was assisting the project by way of providing mortgage monies. It was claimed that these buildings complied with the National Building Code. There is some doubt on that point but it is immaterial here. It appears, from the evidence, that had annexation not taken place, building permits would have been issued by the Township to Alvin Enterprises Limited, early in 1950, but, upon annexation, the area then being within the limits of the City of Ottawa, the City's Building Regulations under By-law No. 8752 applied. These regulations in regard to fire-resistive construction, type and location of heating units and several other matters, as a result of which the Ottawa Building Inspector refused to issue a permit.
There then followed some weeks, or months, of negotiations, between Alvin Enterprises Limited and its architect and the City Officials, seeking some compromise which would be acceptable to the
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City Officials. It was said, especially by ex-Alderman Newman, that "pressure" was brought to bear upon City Officials, the implication in Mr. Newman's evidence, as I understood him, being that this pressure was improper. Her Worship's reference to "extraordinary requisitions and concessions for special considerations" also refers to this situation. I cannot, and do not, find that there was any improper pressure brought to bear upon any City Official or member of the Board of Control or Alderman.
It is true that Alvin Enterprises Limited, sometimes represented by Mr. M.M. Kalman, its architect, and sometimes by Mr. A.W. Beament, its solicitor, did its best by argument, probably quite forcefully at times, and by making numerous changes in the plans and specifications, to persuade the City Officials to issue the permits. One must remember the great urgency for the construction of housing accommodation and the very great desire on the part of everyone for haste, and it mast have appeared that, if the City Officials stood by their by-law, this project might collapse. It was sufficiently important, and urgent, for the matter to be referred to the Board of Control which would have exercised its discretion and directed the issue of the building permits. The Board, however, quite properly backed up its Officials and the permits were refused.
Then followed an happening, which appears to have given rise to suspicion in the mind of Her Worship, but the evidence before me must remove it from her mind. The final refusal of the Board took place on May 4th, 1950, and Alvin Enterprises Limited, through its solicitor, then withdrew the application for permits and intimated that the project would be abandoned. In the course of the negotiation with the City Officials, the Company's architect
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had become, no doubt, fully familiar with the building regulations of the City and, probably, had been considering a set of plans which would conform to the building by-law. In any event, on May 8th, 1950, only four days later, the architect did submit a new set of plans and filed applications for building permits for three types of buildings, involving the construction of many separate buildings based, however, upon three, only, designs. This was quick work and indicated the eagerness of Alvin Enterprises Limited to get on with the building of housing accommodation.
These plans, according to the sworn evidence before me, complied with the minimum requirements by By-law 8752 and, therefore, and quite properly, the Building Inspector issued the permits as routine procedure. As the plans did comply with the requirements of the by-law, there was no need for any action by the Board of Control or Council, or, indeed, any reference to either of those bodies. I must say, however, in view of the lengthy negotiations that had taken place, the magnitude of the project and the fact that the matter had been referred to the Board of Control, that it is astonishing that the Board of Control was not officially informed by the Building Inspector that he had issued the permits, but that omission does not vitiate or stultify their validity.
The next point I wish to examine in Her Worship's report, is the statement that it would appear that the full significance of the City's consenting to the continuance of the agreement between Gloucester and Manor Park Realty Company Limited "was never fully reported to Council nor examined by them, if, in fact, by the Board of Control itself." Her Worship was not at the materials time a member of the Board of Control. The evidence before me, however, satisfies me that all the terms of the agreement, and its effect,
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were not fully reported to the Board and to Council, but were considered by the Board and Council with some care. I accept the evidence of Controller Paul Tardiff on that point.
I must say here, however, that Her Worship recognized the worth of that finding when on July 9th, after having given evidence all day on the 8th, she promptly and very properly produced a letter, Exhibit 54, from Messrs. Beament, Fyfe and Ault which had been discovered only the night before by the Secretary of the Board of Control, which shows clearly, a fact which Mayor Whitton readily admitted, that the Gloucester agreement was submitted to the Board of Control as early as November 1st, 1949, with that letter which fully disclosed the situation. The late finding of the letter is another instance of Mayor Whitton's difficulties in her investigation of happenings before she became a Controller and Mayor.
Her Worship's report goes on to state there would appear to be reason to examine whether such blanket consent was indeed valid, for this agreement would appear to have been in conflict with certain existing by-laws of the City. It was not made clear to me, although I endeavoured to ascertain just where the conflict was, what by-laws were, in fact, contrary to any of the provisions of the agreement. There was, of course, the extraordinary and illegal procedure of the Township in laying private drain connections and private water services past the street line to the buildings, but that did not flow from the agreement and could not have been discovered by any examination of it. It was solely a mistaken interpretation, by the Township, of the provision of the Local Improvement Act. I am unable, therefore, to find that there is any substance to that contention.
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The next point raised by Her Worship is contained in the statement, "in the light of information, some of which it would appear was never fully laid before Council, ... that for several weeks, amending by-laws and zoning provisions in my judgments tending to create grave monopoly privileges, have been proposed by the same enterprises of from related interests." I have already dealt with the relationship of the various Companies. The words "grave monopoly privileges" seem to imply something subversive of public interests. There is no doubt that many people would view the activities of the developers, and the rights given them by way of the exercise of the power of expropriation, as a monopoly. In a sense, of course, it is, but had the land all been owned by the developers, as is the case with the Honeywell Farm Subdivision, to which I shall refer later, the same monopoly, so to speak, would have existed. I find nothing inherently wrong in such a situation. It was essential to the planning and construction of a housing project of the very large extent of this one.
There is, however, something on which I should comment in regard to Her Worship's allegation, with which I agree, that some of the information was never fully laid before Council. I understand that has reference to Mr. Beament's letter of January 30th, 1950. This letter, Exhibit 4, contains proposals of Mr. Beament and his associates in regard to the development of the land east of St. Laurent Boulevard, and sets out the proposals quite clearly. Attached to it are three exhibits,
(a) referring to the lands sought to be expropriated;
(b) being notes on the proposed agreement between
the City of Ottawa and Mr. Beament; and
(c) general suggestions regarding zoning.
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This letter was reported by the Board of Control to Council at its meeting on February 6th, 1950, bu, for some unexplained reason it appears that exhibits (b) and (c) were not disclosed by the Board of Control to the Council. It seems, in fact, that they were withheld. It was not until the Council Meeting of August 21st, 1950, that exhibits (b) and (c) were tabled with the Council. I cannot understand the action of the Board of Control in this regard and if, in fact, as appears from the evidence, they were withheld, then it was a reprehensible action on the part of the Board of Control.
This withholding appears, notwithstanding the fact that on August 21st, 1950, when the Council was fully informed it approved and adopted the recommendations of the Board of Control, to have had certain consequences.
Exhibit (b) contained Mr. Beament's suggestion for a proposed agreement. It was, obviously, his intention and expectation that a formal contract would be drafted by the City Solicitor, and that, after its terms were settled to the satisfaction of the City, as well as Mr. Beament and his associates, it would be formally executed. This was not done. Why I do not know. IT should have been and it should have been formally authorized by by-law. Section 259(1) of The Municipal Act provides that the jurisdiction of every council shall be confined to the municipality whith [sic] it represents and its powers shall be exercised by by-law. There was slackness, here, although I do not find that any serious results flowed from the failure to authorize and execute a formal contract, except, possibly, as to the matter of lost taxes. It is quite possible, had a formal agreement been prepared and submitted to the Board of Control and the Council, that the indemnification of the City against any loss, damages and claims arising out of the expropriation, as referred to in the Council Minutes of February 6th,
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1950, would have been expressly provided for in that agreement and, therefore, might have eliminated any doubt or controversy over the matter of loss of tax revenue.
Another point raised by Her Worship in her reference to the "controversy re local improvements charges in Manor Park." These local improvement charges have to do with the sewers and watermains and the private drain connections and private water services constructed in connection with them.
The construction of the sewers and watermains, in the Manor Park Area west of St. Laurent Boulevard, was commenced by the Township of Gloucester several years before the annexation and was, then, approximately 75% completed. This work was commended under Section 64 of The Local Improvement Act, which authorizes a township (but not the City) to define an area and charge the whole cost of construction, including what would otherwise be the corporation's portion, against the properties benefited, either way by a frontage rage, or by a mill rate on the assessed value of the property in the area, or by a combination of the two. This Section of The Local Improvement Act, is, obviously, designed to permit of the development of a small section of a township without placing any of the burden of local improvement charges upon remote sections of the township which could not be considered to benefit in any way from such construction. In the case of a city, however, which is much more compact and densely populated, the municipality at large is considered to benefit from the construction of local improvements and, therefore, the corporation is compelled to assume part of the cost. That is to say, the tax-payers at large are compelled to assume part of the cost. The corporation's share is defined in Section 23 which provides that there shall be included in the corporation's portion of the cost at
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least one-third of the cost of a sewer of a sectional area of more than 4 ft; the entire cost of all hydrants constructed in connection with a watermain; the entire cost of all culverts, catch-basins and other works which are provided for surface drainage and which are incidental to the construction of a sewer or pavement; and so much of the cost of the work as is incurred at street intersections. Further, when, under Section 28, a reduction of assessment is made because of corner lots, triangular or irregularly shaped lots, or where a lot is for any reason wholly or in part unfit for building purposes and a reduction is made for flankages, all such reductions are added to the corporation's share. The policy adopted by the Township was very different from the statutory limitations of the City so that when annexation took place the City sought and obtained special legislation permitted it to complete the sewers and watermains in Manor Park on the same basis as they had been commended by the Township, that is, avoiding the assumption of the Corporation's share and placing the whole cost upon the properties immediately benefited. The legislation was enacted by the Legislature of the Province of Ontario and was permissive. Whether or not any of the property owners realized the effect of the City's application for this legislation, or even knew of it, is not known to me, and the probabilities are that they were unaware, in any event, of the effect.
The City, having obtained the special legislation, proceeded to complete the work begun by the Township. It was then discovered that the Township had not only constructed the private drain connections and private water services from the sewers and the mains to the street lines, but, quite illegally, had continued
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them on privately owned properties up to or close to the walls of the buildings. There was, of course, no authority for this in The Local Improvement Act, and, again, special legislation was sought and obtained permitting the City to complete the rest of installations of private drain connections and private water services on the same basis and assess them as part of the local improvement work. This latter, in the particular circumstances, was a practical and sensible course to follow so that all the work would be done and assessed in the same manner.
The property owners, however, when the special assessment rolls were completed and notices of the sittings of the Court of Revision were delivered to them, complained very bitterly that, following annexation, the assessment level of their properties had been raised substantially above what they were or would have been in the Township, that their taxes were substantially higher thereby and they felt, and still feel, that, as they are being burdened with heavier taxation in the City of Ottawa than they would have been in the Township, they should receive the benefit which other property owners in the City of Ottawa receive, insofar as local improvements are concerned, namely, the assumption by the Corporation at large of the normal corporation share of the cost of these works. With this contention I am sympathetic.
It was said that, generally speaking, a corporation's share amounts to approximately 20%. It will, of course, vary in various areas and works. I note that in connection with the local improvements constructed east of St. Laurent Boulevard, as show in Exhibit 65, that the Corporation's share of the asphalt pavements amounted to 46.53%, and the Corporation's share of the sanitary sewers, storm sewers and watermains averages 25.48%. There
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is in Ottawa, I understand, a special policy established by by-law in regard to pavements. It would seem equitable, therefore, to use the percentage of 25.48, or some percentage close to to it and higher than 20%, as the measure for calculating what would have been the Corporation's share of the sewers and watermains in the area west of St. Laurent had they been constructed under the standard City policy. Applying this percentage results in the Corporation's share being $133,515.20.
I have read the report dated January 30th, 1952, of the Departmental Committee appointed at the request of the Manor Park Community Association, to examine into these local improvement charges. This report is Exhibit 66. I have great respect for the members of that Committee, the Commissioner of Works, the Commissioner of Waterworks, and the Director of Planning and Development each of whom gave evidence in the Inquiry and the City Solicitor who acted as Commission Counsel, but I find myself in complete disagreement with their recommendation, except as to the two amounts of interest and sewer pipe which were assumed by the City.
The evidence shows that the City assumed the difference between the interest rate, upon which the special assessments were calculated, and the interest rates at which the debentures had to be marketed in order to obtain par, or approximately par, and Exhibit 65(a) shows this additional interest cost to be sum of $35,729.00. In addition, there was the sum of $3,915.00 paid for sewer pipe, which, apparently, was overlooked and not included in the costs on which the special assessment roll was based. These two sums total $39,643.00 and should be deducted from the above figure leaving a net Corporation's share of $93,872.20. Further, the cost of those parts of the private drain connections and private
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water services constructed on privately owned property should be calculated, or estimated, and, also, deducted. In my opinion, the then net amount should be assumed by the Corporation and I so recommend. It may require further special legislation but it would make for equitable treatment of these property owners as compared with all other property owners in the City.
Mayor Whitton expressed the view that the local improvements initiated by the Township should have been "closed up" prior to annexation. This, however, while possibly desirable from the City's viewpoint, was impossible. The work was under contract, was in process and from a special assessment standpoint could not have been so handled. It was, I think, logical and proper for the City to take over the finish the work even though special legislation was necessary.
Mayor Whitton also contended that that part of the cost of these local improvements, incurred in constructing them from the street line to the buildings, on privately owned property, should have been charged back to the developers. This, however, in my view, was impracticable. The error was the Township's, not the developers'. There was no agreement covering it and while the developers might have agreed to assume it they could not have been compelled to. They did, however, insofar as the work still to be completed was concerned, offer to indemnify the City in the event that necessary special legislation could not be obtained.
In order for the Township of the City, respectively, to have retained ownership of those bits of the private sewer connections and private water services constructed on privately owned properties, there would have have to be, for each separate property, easements necessitating surveys, agreements, registrations
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etc., involving extensive delays and great cost. This was what Mr. Beament's letter of November 9th, 1950, Exhibit 23 referred to in using the words "intolerable burden". I think Her Worship misunderstood that reference. All the difficulty arose not, as she contended, from omission in the Gloucester agreement, but from the error of the Township in construction those locals beyond the line of the street.
I come now to a consideration of the manner in which the power of expropriation was exercised by the City, that is, by the Board of Control and the Council. The provisions of The Municipal Act, in regard to expropriation, are of very long standing and, in my opinion, are sadly in need of drastic overhauling. The procedure followed by the City was that the respective expropriating by-laws were prepared by the City Solicitor, were, in due course, passed by the Council and the approval, of the Minister of Planning and Development to the exercise of the power of expropriation for the purposes of a housing project, was sought and obtained, in the case of each by-law, by the City Solicitor. Up to that point the procedure was quite proper.
The Board of Control and the Council, however, then adopted a most unusual and, in my opinion, improper, course of action. The conduct of the negotiations between the City and the expropriated owners was handed over to Mr. Beament's law firm of Beament, Fyfe & Ault, who then conducted all the negotiations. The reason, or excuse, given for this course of action appears in the evidence of Controller Tardiff who stated that it was done because the City Solicitor's Department was overworked and understaffed. If that were so, then the Council should have provided Mr. Medcalf with an adequate staff, or at least engaged some other solicitors,
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so that all the procedures, in connection with the expropriation, including negotiations, applications for Orders of Possession, etc., would have been conducted, not by one of the developers who were the beneficiaries of the exercise of the power, but by City Officials. I am convinced that from this action arose the initial complaints that lead to be obtaining of the special legislation authorizing this Inquiry.
The City's action was not illegal but was, in my opinion, improper, and certainly very bad policy. It was not effected by by-law, even, as it should have been if it were to be done, but by some loose, slipshod understanding. There is a well known saying that not only must justice be done, but it must appear to be done. How could it, in this instance, appear to be done? It is easy to understand the feelings of resentment of those property owners whose properties were expropriated, true for a proper and worthwhile objective, but, nevertheless, for the benefit not of the Corporation itself but of other private individuals, and, especially so, when they found that they had to deal with, and obtain their compensation from, the very persons for whose benefit their properties were expropriated.
Expropriation is an arbitrary action and, certainly, personas whose properties are being expropriated feel that it is also harsh and unfair. The expropriation provisions of The Municipal Act do not require any notice to be given to the expropriated owner, either before or after the expropriation. The passing and registration of the by-law takes his property away from him and substitutes a right to compensation. If there are negotiations prior to expropriation and they fail, or if, after the expropriation, there are negotiations with the owners as to compensation and they fail,
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then the expropriating authority has power to apply to the County Court Judge for an Order for Possession and this Order is granted, ex parte, that is without notice to or knowledge of the owner, upon affidavit evidence, acceptable to the County Judge, providing the Judge with some evidence of value. Upon the Judge fixing the amount, and that amount being paid into Court, the expropriating authority may take possession. If an owner is not satisfied with the amount paid into Court, as compensation, then he is entitled with proceed with arbitration and have his compensation fixed by the Official Arbitrator, if there is one for the municipality, or by the County Judge. This legally protects his rights, but it is sometimes a rather empty protection where the amount at stake is small and the risk of costs, should the arbitration hearings be unsuccessful for him, high. It is curious that there is no provision in thee Act requiring notice to the owner, at any stage of the proceedings, although the Judge's Order frequently includes a direction that a copy of the Order to be delivered by registered mail, or personally, to the expropriated owner.
In this development, after annexation, the Orders for Possession were obtained by the solicitors for the developers and actual physical possession as taken by the developers. This, I think, was improper. All steps up to and including actual possession should have been carried out by the City Solicitor and other City Officials, and then, and not until then, possession given to the developers. Compensation and arbitration proceedings should have been dealt with the same way with, of course, the developers having some say as provided for in the proposal of January 30th, 1950, Exhibit 4.
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In the circumstances here, it is quite clear that the developers, after the expropriation had been effected by registration of the by-law, took possession of some of the properties before, in some instances, before the expropriated owner was aware that expropriation had taken place. The taking of possession, where it happened before obtaining an Order for Possession, was illegal, although, as the properties were vacant undeveloped lots, no one was really hurt. The taking of possession, after the obtaining of an Order of Possession, but before the expropriated owner is made aware of the expropriation, was legal, but was certainly harsh and, in my opinion, an objectionable course to follow.
I cannot too strongly, therefore, criticize the Board's and Council's action in this regard.
The compensation paid or to be paid to the respective expropriated owners have mostly been settled and I think it is a reasonable assumption that they have been settled equitably.
It may be that some of the expropriated owners have felt that they were not adequately compensated, but each of them had the protection of going to arbitration should he or she not be satisfied. In the one instance of which the evidence was given, the Official Arbitrator, Exhibit 44, fixed the value of Lot 236 on old Plan 344 owned by Sydney Martin, at $200.00, awarding the costs, fixed at $50.00 and disbursements, to the City of Ottawa. In this instance Mr. R.B. Hutton of the firm of Beament, Fyfe & Ault, represented the City of Ottawa, and is a further indication of what could give rise to dissatisfaction in that it was the developers, in fact, who opposed the application for increased compensation. I do not question the amount of the award, in fact it is an indication that the compensation generally offered
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was fair, but I criticize the fact that it was not the City Solicitor who acted for the City on the Arbitration.
A number of expropriated properties, the owners of which are represented by Messrs. LaFleur & Aubin, are still subject to arbitration. One of rather surprised that so many years should have passed during which the solicitors for these particular property owners have taken no steps, apparently, to bring the matter of compensation before the Official Arbitrator. It is another instance of the need of revision of the expropriation provisions of The Municipal Act.
A number of the property owners, following complaints to the Council, engaged Mr. Samuel Berger, Q.C. to represent them, and Mr. Berger wrote a very long and interesting letter, dated February 13th, 1951, to the Council, a copy of which was filed as part of Exhibit 23. I find myself in general sympathy with the view-point expressed by Mr. Berger, and where the developers did take possession of expropriated properties before an Order for Possession was obtained from the County Judge, it was, to repeat, illegal.
Where the developers took possession of a property after an Order for Possession was obtained, but before the property owner was aware that his property had been expropriated, again to repeat, where of course the owner and his address was known, it was a harsh and arbitrary, even although strictly legal, action. I have already commented, critically, on this action of the Board of Control and Council and do only, no, reiterate what I have already expressed. Not only did that course of action result in extreme dissatisfaction on the part of the expropriated owners, but must have caused the developers, even where they pursued a legal course,
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a good deal of embarrassment and some loss of goodwill.
The lots of Camelia Street, sixteen of them, were referred to as the "Kitty" and for the City to have made them available to the developers in the manner it did, was, I agree with Her Worship, a "special consideration." The Board of Control and the Council were not misled; it was not a secretive o underhand, even if improvident, arrangement. What happened was this. The developers in assembling the area east of St. Laurent, especially that parcel to be conveyed to Alvin Enterprises Limited, found many owners objecting to the compensation being offered, (in some instances $200.00 per lot), some of whom indicated a willingness to accept another lot in the area instead of doing to arbitration. The developers knew of these sixteen lots on Camelia Street, which had been acquired by annexation from Gloucester. That particular street was on an old survey, was undeveloped with no water and sewer services and had little prospect of either as it was not part of the area being opened up by the developers. The developers approached the Board of Control, which reported to the Council on June 6th, 1950, Exhibit 2, that the developers had requested that lots owned by the City on Plan 297, be made available for exchange with some four home owners and several lot owners who would surrender their rights to compensation for their properties, located on Plan 344, if they could be provided with other suitable lots in the vicinity. The developers offered to pay at least the assessed value. The Board of Control and Council must have known, or at least could easily have ascertained, where these lots were. The proposal was accepted, the purchase price to be paid was agreed upon or was to be arbitrated. Later the developers paid $400.00 for each of
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these lots, which, I understand, is not necessarily the final price.
It was a special consideration but not an unreasonable one. Had the City refused and retained ownership it would have, instead of the fortunate sixteen individuals, benefited from the unearned increment. The greatly increased value of these lots, as it turned out to be, was not caused by any action of the City, but by the general improvement in the area due to the activities of the developers. The developers might have been better off to have gone to arbitration at $200.00 per lot, instead of paying $400.00 of more, and, of course, heavy moving and other costs for the four home owners, but this, it seems to me, is all "second-guessing" so to speak. I do not think that this action of the Board of Control and Council should be criticized.
I am inclined to agree, however, where a municipality agrees to convey owned lots for a housing project or land assembly plan for private developers, and where lots are held, as on Camelia Street, for the benefit of private developers, that from the moment of the agreement the developers, by the agreement, should be required to pay the equivalent of what the taxes would be if those lots were, and as if those lots had been, assessed to private owners.
Four of the owners of property in the development area, namely, Burdett, Cashin, Radcliffe and Vaillant, accepted lots on Camelia Street in substitution for their expropriated lots, and I understand have benefited greatly by the increases in general values in the area, created by the developers. There was evidence that they took advantage of that unearned increment and sold their lots at from $1,000.00 to $1,250.00. They were particularly fortunate
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or, maybe, astute.
There has been some controversy and, apparently, some feeling, amongst some of the residents of the Manor Park Area, in regard to the shopping centres.
It is quite clear that the original intention of the developers was to have a shopping centre on the west side of St. Laurent bounded by Braemar, Jeffrey and Eastbourne Streets. It is also quite clear that it was subsequently their intention to establish an additional shopping centre, approximately opposite the first, on the east side of St. Laurent. Both these intentions were formed at the time when the whole development was smaller in scope than it has ultimately turned out to be.
The developers having been approached, by the owners of properties adjoining the proposed shopping centre on the west side of St. Laurent, to change the plans and establish residential buildings of various kinds thereon, and, apparently, having realized that the two proposed shopping centres were no, together, large enough for the whole area, decided to change their plans and establish a shopping centre on the east side of St. Laurent south of Hemlock and London Terrace, respectively. This appears to have been a sound decision, not only from the standpoint of the developers, and the requirements for a larger shopping area, but because it keeps the shopping area traffic south of the intersection of Hemlock and St. Laurent which, as pointed out by C.D. Wight, the Director of Planning and Development, is a desirable feature.
It is not a matter for me to deal with as the approval of zoning and building restriction by-law comes under the jurisdiction of the Ontario Municipal Board.
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In any event, the necessary amendments to the zoning by-laws were effected by amending by-laws of the City of Ottawa which were, subsequently, submitted to the Ontario Municipal Board for its approval and, after due notice to parties interested and a public hearing in the City of Ottawa, approved by that Board. While it is understandable that some residents of the Manor Park Area will have further to go for shopping than they originally anticipated, nevertheless, from the standpoint of the whole development, the change in plans was sound and as the objectors, I am told, did not appear as the public hearings to oppose the amending by-laws, they should not now complain. There is, therefore, nothing for me to add or to consider in regard to these complaints.
Before I leave this part of the Inquiry I should deal with some aspects of the matter which were raised by Her Worship in her evidence at the Inquiry rather than in her report to Council.
Mayor Whitton expressed the view that, when properties are being expropriated for private developers of a housing project, the municipality should provide the services of independent valuators and even legal services for the expropriated owners, all at the expense of the municipality, but to be recovered from the developers. With the first proposition I partly agree, from the second I dissent entirely.
If all the expropriation proceedings up to delivery of possession and title had been conducted by City Officials, then, it seems to me, it would have been routine procedure and ordinary caution for the City to have engaged at least one, preferably two, independent valuators to valuate the properties to be expropriated and advise the City on the respective values, not only to protect the City in the event of arbitration
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proceedings, but to inform the City as to the price it should receive on re-sale to the developers. The cost of this might be recovered from the developers if the agreement so provided but, in any event, would be a proper civic expenditure. It would not, of course, be reflected in the compensation which would be fixed, so to speak, by the valuation, subject, of course, to later negotiation with the owner and possible arbitration. Valuators on opposite sides of a dispute seldom seem to agree and this recommendation would not be so much for the purpose of assisting or protecting the property owner, although, of course, it would tend to do that, as for the purpose of guiding the municipality.
The furnishing of legal services to the expropriated owner, at the expense of the municipality is not a function of the municipality and should not be considered.
There was some comment about the power of expropriation having been used, for the benefit of the developers, to clear title to lands allegedly, (I say allegedly because there was doubt in regard to their title), owned by the developers. It was an unusual use of the power but a justifiable one in the circumstances. Whatever other, and maybe unknown, persons there were who had interests in those lands they did not thereby lose their respective interests in compensation.
Mayor Whitton also expressed some concern because citizens of Ottawa residing in the Manor Park area had to pay to the Town of Eastview a "mark-up" of 3½¢ per 100 cubic feet over and above what Eastview paid Ottawa for water. The explanation is simple and shows no cause, in my opinion, for concern. The application for water for the area first came, in 1946, for three hundred homes. This was in the very early exploratory days of the
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development. According to the scorn evidence of Mr. W.E. MacDonald, Commissioner of Waterworks for the City of Ottawa, the City did not have sufficient water in the vicinity but Eastview did and so it was proposed to lay a 10 inch main from the intersection of Marier Road and Catherine Street to Manor Park. This was a temporary expedient for a period of five years as the City was planning a sixteen inch main across the Rideau River and down the Montreal Road which would serve this and other areas. That was, however, a huge undertaking involving, also, the construction of a 500,000 gallon ground storage tank. It was not completed until 1952 and, therefore, without the agreement with Eastview, and the construction of the 10 inch main, water would not have been available for the Manor Park project until, at the earliest, 1952. Eastview pays Ottawa 13¢ per 100 cubic feet and charged the Manor Park residents, during that period, 16.25¢ per 100 cubic feet. In other words, Eastview charged 3.25¢ per 100 cubic feet for the use of its own mains. I assume the 3.25¢ charge was fair, as all parties agreed and Mr. MacDonald did not criticize it. In any event, some charge was fair and proper and the amount of it seems to be reasonable.
Mayor Whitton also expressed some concern of the price at which land, in two instances, was sold by the developers in their private capacities. I refer to the sale of he Keefer and McKay parcels by the developers to Manor Park Realty Limited and the later sales to Peerless Houses Limited and to Alvin Enterprises Limited. In the first instance Her Worship's information was defective. These two parcels were acquired by Mr. Beament and his associates for $35,000.00 and subsequently sold to the
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Company for $135,000.00. This was a substantial profit, it is true, but, in the meantime, great changes had taken place due to their initiative and energy. The project was under way, water was assured, water-mains and sewers arranged for and approval of Central Mortgage & Housing Corporation assuring financing of construction of the houses arranged for. The acquisition and development of a large contiguous area was also planned and arranged for. All this substantially increased values. The two parcels were privately acquired and neither the power of expropriation nor municipal ownership of property was involved. If Manor Park Realty Limited, incorporated by Mr. Beament and his associates, in its judgment as a corporate entity, deemed the land worth that sum, it seems to me that that was their and its business. They were entrepreneurs and in a free economy entitled to make a profit. If the Company paid too much and sustained a loss that was still its business. The law of supply and demand applied. I do not think it a matter for criticism.
The second transaction concerns the sale to Peerless Houses Limited. This was an entirely independent Company. The municipality was paid $29,500.00 for land which was sold to Peerless Houses Limited for $85,550.00. Here, again, the developers got the advantage of the increase in value due partly to their development efforts, but also to capital expenditures; and the fact that it was an independent Company, not one of their own incorporations, serves as a useful check on the question of pyramiding costs of land. The law of supply and demand still operated.
The third transaction also involved expropriated lands and was a conveyance, under the agreement of January 30th, 1950, between Mr. Beament and the City, to his nominee, as provided for in the
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agreement, which turned out to be Alvin Enterprises Limited, an entirely separate and independent company earlier described. The City was paid some $3,200.00 for its lots. Alvin Enterprises paid $88,000.00 for the parcel, but the parcel contained land purchased by the developers, and expropriated to clear their title, as well as the built-upon properties whose owners had to be compensated. This also appeared to be a substantial profit and it was not surprising that Her Worship, not knowing the facts, thought the City had made a very poor deal indeed.
The facts as adduced in evidence present a different picture. This parcel of land involved the expropriation of several built-upon properties. The assembling of the land involved other heavy expenditure and costs. Exhibit 68 filed shows that the property cost the developers $93,659.78, showing a net loss to Mr. Beament and his associates - just one of the hazards of land assembly and development.
I doubt if it is possible to prevent developers getting the best possible price out of their development efforts. I'm not at all sure, in a free economy, that it would be even desirable as any control along that line would tend to stifle private enterprise. In this particular project, and notwithstanding the prices paid by the companies in the first two instances, the end prices of the houses do not seem to have been inflated. In again quite from Mr. Mansur's evidence"-
"But in Ottawa I would think that the initial selling
price of certain projects one and two-that is, the first
two hundred in Manor Park-was of the order of fifteen
to twenty percent underneath the free market".
Where land for a housing project is expropriated by a
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municipality for the benefit of private developers, there should be some control on re-sale. That is to say, the municipality should assure itself that any re-sale of land by the developers will not be for speculation but that the purchasers will proceed, and promptly, with the very type of development for which the land was expropriated. There is little to criticize, on this point, in regard to this development. The project did go ahead promptly and, apparently, to a much greater extent than originally envisioned by Mr. Beament and his associates. That, of course, was the purpose of the incorporation of Manor Park Realty Limited and related companies, and in the sale by that Company to Peerless Houses Limited it expressly provided against speculation by its purchaser. Then, too, in the sale to Alvin Enterprises Limited it appears that immediate construction of the low-rental housing that was promptly gone on with was assured.
But, and in this observation I agree with Her Worship while realizing that here it was not needed, the municipality should ensure, by competent covenants and provisions in the agreement, that upon a re-sale or upon a request for conveyances to nominees, that the very purposes of which expropriation was exercised are going to be fulfilled and without delay.
Mayor Whitton questioned the use of power of expropriation by a municipality "for any interest other than a duly constituted housing authority acting directly under a public authority". There can be no doubt, I think, that The Planning Act so provides and that the Legislature so intended. Sec.17(1)(c) expressly provides that when land is acquired for a housing project the municipality may, with the approval of the Minister, sell the land so acquired to any person or government authority and even for a nominal consideration.
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The underlinings are mine.
Mayor Whitton also suggested that when land is expropriated for a housing project the municipality should assemble it and then offer it for sale by public auction. I cannot agree. I do not think it is the proper function of a municipality so the speculate not only on what it could get for the land, but also as to whether any person would be prepared to proceed with a housing project on it. The approach, I think, must be, as here, from the developer, whether a private person or an housing authority.
One other observation and I then leave Manor Park. Her Worship suggested that where a municipality proposes to expropriate, and as I understand her evidence, either for a municipal purpose under The Municipal Act, or a housing project under The Planning Act, there should first be a public hearing to enable the owners to be expropriated to protest and, maybe, suggest some other course. There is no authority for this and it is not practical. It there were statutory authority for it it would lead only to endless delays and probably litigation, including injunctions. In regard to expropriation for a housing project, I think the judgment and discretion of the council, subject as it is to review by and approval of the Minister, are sufficient safeguards.
The other branch of the Inquiry is the matter of the development of control of subdivision. The most important one, referred to me, and with which I will deal at length later, is the Honeywell Farm Development, or what is sometimes known as the Westwood Subdivision, but I wish first to comment on the Strathcona Heights Development, only because I need to make a brief reference to it.
This was placed in the resolution, I understand, because
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Alderman St. Germaine was under the impression that the construction of a shopping centre, which has not been constructed, had been provided for in the agreement. When Alderman St. Germaine learned that was no so he expressed himself as being satisfied. I find, however, on investigation, that while a shopping centre was not provided for in the agreement it was very definitely shown on the original subdivision development plan. I, therefore, inquired of Mr. D.B. Mansur, and received a letter from him dated July 16th, 1953, Exhibit 76, which explains quite clearly and, I think, satisfactorily the reason that the shopping centre was not built, the reason being that Central Mortgage & Housing Corporation could not interest any of the chain stores in establishing a shopping centre there because of the limited prospective business. The reserved area was, therefore, later, turned into a parking facility for the tenants of the various apartments. That matter is, therefore, quickly disposed of.
The problem is controlling subdivision development, and the provisions of agreements with the subdividers, it, in the City of Ottawa, a matter of comparatively recent interest. Prior to annexation there was no land, with the exception of one area then still devoted to market gardening, available for subdivision development and, therefore, the City Officials had no experience with, and had no occasion to have experience with, subdivision development. There was no land on which they could, so to speak, practice and develop their ideas. There was no Director of Planning & Development and no planning department, and this was so until 1951.
Planning of a subdivision, from the aspects and standpoint of a municipality, is comparatively new, and while there were zoning powers in The Municipal Act, and the old Planning and Development Act,
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the control of subdivision has really developed since The Planning Act was passed in 1946.
Municipalities all over Ontario differ in the demands that are placed upon subdividers but it is general experience that, as development goes on, the requirements of the municipality become greater and greater, partly due to experience gained, partly due to increasing debenture burden on the municipality concerned, partly due to other causes, one of which is revised thinking in regard to the responsibilities of private developers who profit from development. These requirements extend from nothing to the maximum which is experienced in some of the townships surrounding the City of Toronto, where the subdivider is required to pay the whole cost of municipal services, such as watermains, sewers, pavements, curbs, and sidewalks. Some municipalities even go to the extent of requiring payment of the cost of installing street lighting and hydro-electric power services, and one municipality demands a substantial payment per lot to be use for the future construction of schools.
The minimum requirements, generally, consist of the subdivider being required to grade, ditch and stone roads, install intersection culverts and provide drainage outlets for all the street allowances in the proposed subdivision, together with the installation of access culverts from the road to each lot. The requirements vary, therefore, from the general minimum requirements as just described, to the maximum requirements previously referred to. It is a matter for the discretion of the Council, on the advice of its departmental officials, as to just how far the municipality should go.
I have read with a great deal of interest the report of
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The Chairman and Members of the Ottawa-Gloucester Expansion Committee dated the 12th August, 1946, filed as Exhibit 63, and the report of the Ottawa Planning Area Board dated December, 1947, filed as Exhibit 34, and the report of the Honeywell Farm Subdivision Committee, filed as Exhibit 28, and I have listened with a great deal of attention and interest to the evidence of Mr. C.D. Wight, the Director of Planning and Development. It is obvious that the acquisition of large areas of land, by reason of the annexation in 1950, not only changed the whole development picture, for the City of Ottawa, but the thinking of its officials and, presumably, of the members of the Board of Control and the City Council. The differences in the terms of the agreement between the Township of Gloucester and Manor Park Realty Company filed as Exhibit 3, and the informal agreement between the City of Ottawa and Mr. A.W. Beament, filed as Exhibit 4, on the one hand, and the agreement with the Honeywell Farm Developers, dated April 7th, 1953, between the City of Ottawa and Messrs. Burritt and Kopas and Rhodes & Radcliff Limited, Exhibit No. 19, on the other hand, illustrates the changes in the thinking and in the approach of the City of Ottawa towards subdivision development.
The City, in the early states of the Manor Park Development, after annexation, and in the earliest stage of the Honeywell Farm Development, adopted, in my opinion, a very sound practice. For Manor Park it set up a special committee composed of the City Solicitor, as Chairman, the Commission [sic] of Works, the Commissioner of Waterworks and Messrs. W.B. MacRostie and R. Bruce Davis. At first I was inclined to criticize the inclusion of the City Solicitor as a member of the Committee, as he is not in any way an executive officer, but is purely an advisory official. After studying
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the situation, however, and realizing the part that a full time solicitor plays in the administration of a municipality, I am now of the opinion that he performs a very useful and sound function, not only as a member of such a committee, but especially as its Chairman.
The Manor Park Development Committee came into the picture fairly late, but it is obvious that the experience it, and the Council, gained from its consideration, was of great value to the City. When the Honeywell Farm Subdivision Committee, this time, and more properly, composed only of City Officials, namely the City Solicitor, the Director of Planning and Development, the Commissioner of Works, the Commissioner of Waterworks, the Commissioner of Finance, the Medical Officer of Health and the Assessment Commissioner.
I note with a great deal of interest and certainly with approval, that, in the course of the development of that subdivision, that Committee found it desirable to obtain the opinions of the Ottawa Transportation Commission, the Ottawa Hydro-Electric Commission, the Collegiate Board and the Public and Separate School Boards.
The result of the deliberation of that Committee are shown in its report dated March 20th, 1953, Exhibit 18, and the later latter of May 5th, 1953, to the Board of Control re Procedures of Subdivision, filed as Exhibit 72. These Exhibits show that Committee is very definitely "on top of its job" and is seems that there is very little that I can render of assistance or guidance to it or to the Board of Control and the City Council. I wholeheartedly commend these two documents to the consideration of
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the Council and to all other municipalities.
This report strikes a balance between the two extremes of the demands made of subdividers, as above referred to. The requirement that the land be developed in an orderly fashion, and not haphazardly or all at one time, and the requirement that the subdivider should bear some part of the cost of the sewers, watermains and pavements, certainly appear to be well considered. It is, of course, a matter of for the Council's discretion, having regard to the Municipality's financial position, to present and future development of municipal services and the demand for housing accommodation, as to whether the burden upon the subdivider should be increased or lessened. The balance struck here seems to me to be reasonable and sound.
There is thinking in some parts of Ontario that to require the subdivider to provide all services and recoup himself from the sale price of the lot increases the ultimate burden of the homeowner substantially beyond what the burden would be if those services were provided, at least in part, but local improvements. Some of the thinking here is that that is because the municipality, as a rule, can borrow money at lesser interest rates than mortgage interest rates. Them, too, local improvement rates are usually paid for in five years for sidewalks, ten years or maybe fifteen for pavements and watermains and sewers, whereas the mortgage is usually on a twenty year basis. There again it seems to be a matter for the discretion of the Council having regard to the financial position of the particular municipality. It is obvious, in some municipalities in the Province of Ontario, that the tremendous burden of local improvement debentures has so affected the credit position of the municipality that it is practically
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barred from the market for debenture purposes no matter what the purpose of the debenture issue is, nor how urgent and imperative it is for the health and welfare of the inhabitants.
Where such a situation exists it seems to me that it is obvious that the subdivider must be required to undertake more of the expenditures for services than in other municipalities where the credit situation is not so acute. But that is for each Council concerned to study and decide.
Requiring a subdivider to pay for all the services may operate, of course, to delimit subdivision development and that, in many instances, may be a good thing, but in other instances it may hamper the production of housing units which are an essential matter for the health and welfare of the inhabitants. It might drive subdivision development into fringe areas.
Here again the judgment and discretion of the Council is important, and, presumably, knowing local conditions, should be accepted.
Because of the alleged change in thinking in some areas of Ontario, I have discussed the matter with Mr. D.B. Mansur, who, of course, has had a very wide experience not only in Ontario, but in all of Canada, and I asked him, and he helpfully consented, to have made a study of that problem, and I quote herewith, but only briefly, from that study.
"I understand that you are aware of the arrangement which
the City is making with the developer in the case of
the Honeywell Farm Subdivision, in that the developer
is paying outright for a portion of the cost of the
services, this reducing the local improvement taxes
to the ultimate home purchaser.
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I rather think this is a good approach by the City of
Ottawa as it will mean a lesser carrying charge by the
home owner, but, at the same time, we must keep in mind
that it will increase the first cost or sales price of
the property by the amount the City collects in a lump
sum from the developer. My belief is that over a period
of the next two of three years a modification of this
arrangement should be arrived at between municipal-
ities and builders, which will provide a basis for land
development with services partially paid for, part on
a local improvement basis with the sales price kept to
a minimum, and the local improvement tax reduced
considerably from that currently charted by the City
of Ottawa."
I commend anyone interested in this study to an examination of the letters and memorandum from C.M.H.C. dated 27th July, August 17th and August 18th, 1953, all of which I have filed as Exhibit 78.
The development of control of subdivisions in the Ottawa area is hampered, in my opinion, by the constitution of the Ottawa Planning Area Board. I note that in the Council, in its Minutes of April 7th, 1953, Exhibit 2, has already dealt with the reconstitution of the Board and as this is a matter within the discretion of the Minister of Planning and Development, and is not part of this Inquiry, perhaps I should not express any opinion thereon. I would like to comment, nevertheless, that such a Board, in my opinion, should not be composed of elected representatives of various councils, for the reason that they seldom devote any time to planning problems. They are much too engrossed with other municipal duties and obligations to spend the time required for continuous planning and thinking, and council representatives often
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tend to report back to their respective councils not what are the conclusions of the Board, but what their own respective interpretations of those conclusions are, which can be, and often are, and entirely different matter. It seems to me, therefore, that these Boards should be composed almost entirely not of elected representatives but of citizens who have an interest in the community and in the problems of planning and who can and will devote the necessary time to it.
In Ottawa it appears that the application of a developer for the approval of a subdivision plan, after first going to the Minister is referred to the Ottawa Planning Area Board. That Board has connected with it a Technical Advisory Committee composed of officials of the City of Ottawa, the Chief Engineer of the Federal District Commission, and the Director of the National Capital Planning Committee, and that Committee, an able one, advises the Board. The procedure appear to be that the Board examines and considers the plan, develops the agreement with the subdivider to the point that it is prepared in written form and executed by the developer, and then, and sometimes for the first time, submits it to the Board of Control, almost as a fait accompli, for the approval of that Board.
I think this is wrong. I think that the application for the approval of a subdivision plan, when it goes to the Ottawa Planning Area Board, should be sent on immediately to the Board of Control which then, having knowledge of the application, should refer it to a Standing Committee composed of the same personnel, or comparable personnel, (it is for the Council to decide the personnel), that comprised the Honeywell Farm Subdivision Committee.
I think the Ottawa Planning Area Board should deal with the
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application only insofar as general approval is concerned as to the planning as a whole, the layout of streets and their relation to other streets in the area, how the plan fits in with the National Capital Planning Committee's ideas and with the ideas of the Federal District Commission. The Planning Area Board should also consider and deal with the percentage of land to be dedicated, pursuant to Section 26 of The Planning Act, a right which Ottawa has not always exerted, and make recommendations to the Council thereon, and on the removal or establishment of building restrictions for the subdivision, including the provision and location of shopping centres and commercial areas.
It should be solely the jurisdiction of the City, operating through its Board of Control and Council with, of course, the advice of the Standing Committee I have suggested, to decide what will be required of the subdivider in the way of the provision of municipal services, the timing, the possibility of providing water services and sewer outlets and other matters which may involve the expenditure of municipal money.
I mentioned timing, withe reference to the opening and development of a subdivision, as this can be extremely important to a municipality, having regard, especially, to the availability of water and sewers.
Section 26(4) Clause (b), of The Planning Act provides that the Minister, in considering a draft plan of subdivision, shall have regard, among other matters, as to whether the subdivision is premature or necessary in the public interest. The suggests, although it does not seem, to me, expressly to state, that if, in the opinion of the Minister, the proposed subdivision is premature, he may refuse approval of the plan. It seems to me that this provision should be clarified and should expressly provide that the
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Minister has the power to refuse approval if, in his opinion, it is premature. But what is premature? If it means that when a proposed subdivision is too far out to be provided for some time, even years, with water and sewers, I think that a council or a planning board should have something to say as to whether or not it is premature, and, having regard to the above consideration of municipal services, should have some definite control.
It is highly undesirable, in Ottawa, I think, for any subdivision to be permitted where water must be provided by a well and sewage disposal by septic tanks and tile beds. Ottawa's long range planning of watermain and sewer extensions, which appears to be going ahead as rapidly as civic finances permit, should be given great consideration when the matter of whether or not a subdivision is premature is being decided.
There is no reason why the study by the Ottawa Planning Area Board and the study by the Standing Committee should not go hand in hand as to time and as to consideration.
I, therefore, recommend that the procedure be adopted and that the Board of Control, with the approval of the Council, establish a Standing Subdivision Development Committee composed of the City Solicitor, (I suggest he be Chairman), the Director of Planning and Development, the Commissioner of Works, the Commissioner of Waterworks, the Medical Officer of Health and the Fire Chief; and, further, that it should be the duty of the Chairman, with the assistance, of course, of the other members of the Committee, to decide whether and when the advice of the Ottawa Transportation Commission, the Ottawa Hydro-Electric Commission, the Collegiate Board and the Public and Separate School Boards and other City Departments should be obtained. I still suggest
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that the personnel of such a committee is for the discretion of the Council. I assume, in such a procedure, consultation with the Ottawa Planning Board and through it with the Federal District Commission and the National Capital Planning Committee will follow as a matter of course.
I have studied the proposals in regard to the establishment of a green belt. Notwithstanding the extent of the area annexed by the City in 1950, one is driven to wonder whether or not the area should not have been even greater in extent. I am told that while the Council of the Township of Nepean is prepared to co-operate with the Ottawa Planning Area Board and the City of Ottawa in land use control, that the Council of the Township of Gloucester is disinterested, if not resistant, to any such control. If this is so, it is a great pity. It is obvious, in looking at the greater Ottawa area, that all of that area, including those parts of the Township of Nepean and Gloucester not already annexed to the City of Ottawa, and those parts of those Townships included in the suggested green belt, as shown on Exhibit 74, should be under careful land use control. The proposed green belt, I do not speak so much as to its extent of direction as to its general purpose and objective, is an excellent idea and should be pursued. It cannot, however, come into existence of come under control, at any rate as yet, without the assistance of the Townships of Nepean and Gloucester in passing subdivision land use control by-laws subject, of course, as they must be, to the approval of the Ontario Municipal Board. It may be that the new Planning Area Board composed of citizens, not elected representatives, would be able to work out a plan that would be sufficiently acceptable to the interested municipalities to result in their active support by way of implementing by-laws. But any
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creation of a green belt, so-called, involves a potential control that amounts almost to confiscation. Ultimately, therefore, purchase of those lands by some authority must be envisioned.
Much can be done by way of an Official Plan in removing municipal rivalries, but an Official Plan is often little more than a "pious hope", unless it is supported by municipal by laws, and can be hampering and restrictive when changing conditions necessitate amendments.
In the result, therefore, insofar as offering any guidance to the Board of Control and the Council of the City of Ottawa in regard to development and control of subdivision is concerned, it seems I can be of little assistance. I unhesitatingly commend the report of the Honeywell Farm Development Committee, and I feel confident that having a staff of senior officials such as the City of Ottawa has, the Board and Control and the Council are well served. The final responsibility for policy and decisions must always, of course, rest with the elected representatives.
And so this Inquiry ends. I trust the results will help to clear the aid and to set at rest many rumours, doubts and, in regard to Manor Park, complaints, and that it will contribute if not guidance at least something of assurance that in the development of subdivision control, Ottawa is not following a sound course.
DATED this 10th day of November, A.D. 1953.
M.A.S
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M.A. SEYMOUR,
COMMISSIONER