The Residential Construction Council of Ontario is challenging whether the City of Toronto has legal authority to impose green building standards on new residential construction projects.
In a nutshell, we feel they do not as the regulations are already established in the Ontario Building Code (OBC).
We have filed a legal application with the Ontario Superior Court of Justice and are seeking a mandatory order that would block the city from enforcing escalating Toronto Green Standard (TGS) performance measures that go well beyond those set out in the building code.
We want the Building Code Act enforced and an order prohibiting the city from imposing extra building regulations on planning applications because they are beyond the legal authority of the city.
A violation of the building code
The gist of the argument is that the TGS measures are being used to govern construction standards and therefore violate the spirit of the OBC.
The City of Toronto does have authority over land-use planning matters. It can impose site-specific controls over the development of land within boundaries of the city, but Toronto’s powers are subject to limitations set out in provincial statutes.
As set out in the City of Toronto Act, the manner of construction and construction standards are not subject to site plan control because those matters are already governed by the provincial building code.
Individual municipalities do not have the authority to develop their own building regulations, especially ones that trump the provincial building code. The province moved away from this practice in 1975 when the OBC was established. The provincial regulation supersedes municipal bylaws.
City is overstepping its authority
We maintain that Toronto is overstepping the scope of its planning authority by mandating technical building measures already covered in the OBC. All it’s doing is slowing down projects and driving up costs for housing.
The OBC measures have been progressively updated and grounded in research, building science, thorough consultation as well as cost-benefit analysis.
Municipalities are not technical standards development bodies. Nor are they equipped to deal with such regulations. This is why building codes are developed at the federal and provincial level. It makes little sense for individual municipalities to stick their fingers in the pie.
Toronto adopted the TGS in 2010 to achieve more sustainable development beyond the minimum standards set out in the OBC. At first, the standards were voluntary but they are now treated as mandatory. The city is now on version 4 of the standards, with another version slated for 2026, and another in 2028.
The rules impose six categories of standards on development projects, with three tiers in each. The first tier is mandatory and the other two are voluntary.
The City of Toronto is not the only municipality that is breaking the rules. Nearly 30 municipalities have instituted such standards in recent years. Municipalities including Ajax, Aurora, Brampton, Caledon, East Gwillimbury, Halton Hills, King, Markham, Mississauga, Pickering, Richmond Hill, Vaughan, and Whitby have mandatory standards. Many others are not far behind.
Builders had no choice
RESCON did not want to launch this challenge. But builders had no alternative as a number of municipalities have chosen to go this route. Allowing individual municipalities to come up with their own rules, independent of the OBC, only leads to confusion, slower approvals and increased costs.
Don’t get me wrong here. Builders want to be part of the solution to climate change. Ontario’s homebuilders are among the most sustainable in North America. Many are small business owners with families. They are as concerned about the future as anyone and want to do the right thing.
But the approach to building greener must be based on facts that have been tested and verified.
After all, this is not the Wild West.
Rules must be uniform
As has been well-documented, we are in the midst of a generational housing crisis. Recent reports indicate the future is grim. Starts are still declining and indications are that the situation will not be improving anytime soon – even with the cut in interest rates by the Bank of Canada.
In Ontario, we are are on track for 81,300 starts this year, well short of the 150,000 starts a year that are needed to reach 1.5 million homes by 2032. Alarmingly, housing starts in Ontario in the third quarter of the year declined by 16.9 per cent compared to the same period last year.
This is certainly not the time for cities to be going off-script and developing their own green building standards. It would just result in a hodge-podge of different standards across the province.
To build more housing, we need uniform standards across the province. That way, builders will know the lay of the land. Everybody will be playing by the same rules. Green building standards that created by individual municipalities will only be inconsistent and cause problems.
Such a scenario will not do anybody any good.