CITY CLERK. Bill The Toronto Waterfront Revitalization Corporation Act, 2001

Transcription

1 CITY CLERK Clause embodied in Report No. 2 of the, as adopted by the Council of the City of Toronto at its meeting held on February 13, 14 and 15, Bill The Toronto Waterfront Revitalization Corporation Act, 2001 (City Council on February 13, 14 and 15, 2002, amended this Clause by adding thereto the following: It is further recommended that: (1) the meetings of the Board of Directors of the Waterfront Revitalization Corporation and its Committees be open and public in a manner consistent with the Municipal Act; (2) the Conflict of Interest Code being developed be based on the obligations imposed on elected officials under the Municipal Act; and (3) the Commissioner of Urban Development Services and the Acting City Solicitor be requested to submit a joint report to the when the following proposed amendment has been achieved or, in the event that the amendment has not been achieved, every two months: (2) City staff request the following amendments to the Toronto Waterfront Revitalization Corporation Act, 2001, in addition to those recommended in the aforementioned Committee Recommendation No. (I) above: (a) that Provincial representatives be requested to amend Bill 151 by removing the words or unless it is authorized to do so by regulation wherever they appear in the Proposed Legislation or by stating that no regulation may be issued without consent of City Council and the Federal Government;. ) The recommends: (I) the adoption of the following Recommendations of the Waterfront Reference Group embodied in the communication (January 15, 2002) from the City Clerk: The Waterfront Reference Group recommended to the Policy and Finance Committee that:

2 2 (1) City Council advise the Deputy Premier and Minister of Finance, Jim Flaherty, and the Federal Transport Minister, David Collenette of its position in the following areas: (a) that Bill 151 recognize the City s Official Plan as a statutory, governing document; (b) that the geographic boundary of the Toronto Waterfront Revitalization Corporation include the 46-kilometers of Toronto Waterfront, with priority being given to the Central Area, including the major transportation corridor within this area; and (c) that the three governments, on an annual basis, approve the business plan of the Toronto Waterfront Revitalization Corporation; (2) City staff continue to work with Provincial and Federal representatives to ensure that the City s interests and priorities are properly addressed in the Toronto Waterfront Revitalization Corporation Act, when enacted, and in subsequent Provincial regulations and other inter-governmental agreements impacting the Act; and (3) the Chair of the Toronto Waterfront Revitalization Corporation be requested to submit the Corporation s Business Plan to the Waterfront Reference Group; ; and (II) the adoption of the following Recommendations Nos. (2) to (8) embodied in the joint report (January 28, 2002) from the Commissioner of Urban Development Services and the City Solicitor: (2) City staff request the following amendments to the Toronto Waterfront Revitalization Corporation Act, 2001, in addition to those recommended in the aforementioned Committee Recommendation No. (I) above: (a) (b) that Provincial representatives be requested to amend Bill 151 by removing the words or unless it is authorized to do so by regulation wherever they appear in the Proposed Legislation or by stating that no regulation may be issued without consent of City Council and the Federal Government; that sections 8(3) and 11(1) of the Proposed Legislation be amended to add the words and Council after Mayor ; and

3 3 (c) that the first object of the TWRC (s.3(1)1 Bill 151) be augmented to include enhances the ecological, economic, social and cultural value of the land ; (3) the Chair of the Board of Directors of the TWRC be requested to provide a copy of proposed guidelines on conflict of interest for directors and officers of the TWRC to the Waterfront Reference Group as soon as they are available; (4) the TWRC Board of Directors be asked to develop a policy that is acceptable to the three governments that addresses public consultation and public reporting of its activities; (5) City staff, through the Intergovernmental Steering Committee, work to resolve issues related to Bill 151 in a manner that reflects the principles of the long-term governance structure approved in principle by the three levels of government in 2001; (6) City staff work with representatives of the TWRC to ensure receipt of financial reports and other required information at an appropriate time in the City s budget process; (7) City staff report to the Waterfront Reference Group on amendments made to the Proposed Legislation as it proceeds through the legislative process; and (8) the appropriate City officials be authorized and directed to take the necessary action to give effect to those recommendations. The submits the following communication (January 15, 2002) from the City Clerk: Recommendation: The Waterfront Reference Group recommends that: (1) City Council advise the Deputy Premier and Minister of Finance, Jim Flaherty, and the Federal Transport Minister, David Collenette, of its position in the following areas: (a) (b) that Bill 151 recognize the City s Official Plan as a statutory, governing document; that the geographic boundary of the Toronto Waterfront Revitalization Corporation include the 46-kilometers of Toronto Waterfront, with priority being given to the Central Area, including the major transportation corridor within this area; and

4 4 (c) that the three governments, on an annual basis, approve the business plan of the Toronto Waterfront Revitalization Corporation; (2) City staff continue to work with Provincial and Federal representatives to ensure that the City s interests and priorities are properly addressed in the Toronto Waterfront Revitalization Corporation Act, when enacted, and in subsequent Provincial regulations and other inter-governmental agreements impacting the Act; and (3) the Chair of the Toronto Waterfront Revitalization Corporation be requested to submit the Corporation s Business Plan to the Waterfront Reference Group. The Waterfront Reference Group reports having requested the Commissioner of Urban Development Services, in consultation with the City Solicitor, to report to the Policy and Finance Committee for its meeting on January 31, 2002 with recommendations on: (1) the following suggested amendments to Bill 151: Toronto Waterfront Revitalization Corporation Act, 2001: (a) Section 3(1) 1. be amended by adding the words ecological, economic, social and cultural after the words enhances the and substituting the word advanced for the word responsible, so as to read: 1. To implement a plan that enhances the ecological, economic, social and cultural value of the land in the designated waterfront area and creates an accessible and active waterfront for living, working and recreation, and to do so in a fiscally and environmentally advanced manner. ; (b) Section 11(1) be amended by adding the words and Council after the word Mayor so as to read: 11.(1) The Corporation shall give an annual report on its affairs to the Minister of Transport (Canada), the Minister of Finance and the Mayor and Council of the City of Toronto within 90 days after the end of each fiscal year. (c) that references within the Bill stating or unless it is authorized to do so by a regulation, as contained in, for example, Sections 4(3); 4(4) and 4(5), be: (i) (ii) deleted from the Act; or amended to provide that no regulation may be issued without consent of City Council and the Federal Government; (d) proceedings of all meetings of the Corporation be conducted in accordance with the provisions of the Municipal Act;

5 5 (2) concerns raised by the Group with respect to: (i) (ii) Section 2(4) and the applicability of Conflict of Interest guidelines to the Act; Section 2(5) with an explanation as to the reasoning for not applying the Corporations Act and the Corporations Information Act to the Corporation; and (3) any other concerns or comments raised by the Group. Background: The Waterfront Reference Group at its meeting on January 9, 2002, considered the report (January 2, 2002) from the Commissioner of Urban Development Services which reviewed Bill 151, the Provincial legislation that, when enacted, will create the permanent Toronto Waterfront Revitalization Corporation, highlighting issues of concern to the City of Toronto and outlining actions currently being taken to address these issues, and recommended that: (1) this report be received and forwarded to Council, through the Policy and Finance Committee for information; (2) Council s position in the following areas be reaffirmed and communicated in writing to the Deputy Premier and Minister of Finance, Jim Flaherty and Federal Transport Minister, David Collenette: (a) (b) (c) that Bill 151 recognize the City s Official Plan as a statutory, governing document; that the geographic boundary of the TWRC include the 46-kilometers of Toronto Waterfront, with priority being given to the Central Area, including the major transportation corridor within this area; and that the three governments on an annual basis approve the business plan of the TWRC; (3) City staff continue to work with Provincial representatives to ensure that the City s interests and priorities are properly addressed in the Toronto Waterfront Revitalization Corporation Act, when enacted, and in subsequent Provincial regulations and other inter-governmental agreements impacting the Act; and (4) that the appropriate City officials be authorized and directed to take the necessary action to give effect thereto.

6 6 Purpose: (Report dated January 2, 2002, addressed to the Waterfront Reference Group from the Commissioner of Urban Development Services) This report reviews Bill 151, the Provincial legislation that, when enacted, will create the permanent Toronto Waterfront Revitalization Corporation, highlights issues of concern to the City of Toronto and outlines actions currently being taken to address these issues. Financial Implications and Impact Statement: There are no financial implications resulting from the adoption of this report. Recommendations: It is recommended that: (1) this report be received and forwarded to Council, through the Policy and Finance Committee; (2) Council s position in the following areas be reaffirmed and communicated in writing to the Deputy Premier and Minister of Finance, Jim Flaherty and Federal Transport Minister, David Collenette: (a) (b) (c) that Bill 151 recognize the City s Official Plan as a statutory, governing document; that the geographic boundary of the TWRC include the 46-kilometers of Toronto Waterfront, with priority being given to the Central Area, including the major transportation corridor within this area; that the three governments on an annual basis approve the business plan of the TWRC. (3) City staff continue to work with Provincial representatives to ensure that the City s interests and priorities are properly addressed in the Toronto Waterfront Revitalization Corporation Act, when enacted, and in subsequent Provincial regulations and other inter-governmental agreements impacting the Act; and, (4) that the appropriate City officials be authorized and directed to take the necessary action to give effect thereto. Background: On October 20, 2000, the leaders of the City, Provincial and Federal Governments announced their support of the Toronto Waterfront Revitalization Initiative and their commitment of

7 7 $1.5 billion to be shared equally by the three governments. The leaders directed senior staff of the respective governments to cooperate in developing the mechanics of implementing the revitalization plan. On March 5, 2001, Mayor Lastman, joined by Federal Transport Minister David Collenette and Ontario Deputy Premier and Finance Minister Jim Flaherty, announced the commitment of the three governments to the creation of a Toronto Waterfront Revitalization Corporation (TWRC) and the funding of four priority capital projects totalling $300 million. At its meeting on May 30, 31 and June 1, 2001, Council approved Clause 1, Report No. 7 of the entitled Governance Structure and Funding to Implement the Toronto Waterfront Revitalization Initiative. Recommendations contained in this report endorsed the creation of an Interim TWRC. The report also recommended the formation of the Waterfront Reference Group and instructed City staff serving on the Intergovernmental Steering Committee is to report to the Group on a regular basis on project progress. On October 30, 2001, the Deputy Premier and Finance Minister Jim Flaherty signed the Articles of Incorporation necessary to create the Interim TWRC. The Corporation is tightly controlled by the three governments, with a mandate that is restricted to one year and to: (i) (ii) (iii) (iv) coordinating the four priority projects; developing a business and development plan for Waterfront revitalization; establishing and staffing an office; and, developing a procurement process. Throughout the interim period, it is anticipated that the Corporation will work closely with City representatives to ensure the implementation of principles outlined in the Central Waterfront Part II Plan, following its approval by Council anticipated in the Sprint of Discussion: The Permanent Corporation: The governance structure approved by Council at its meeting on May 30, 31 and June 1 required that the permanent TWRC be a non-agent, non-share, not-for-profit corporation in which all three governments share equally. This structure requires Provincial legislation for the City to participate. At the same meeting, Council endorsed a legally binding contribution agreement that defined the relationship between the three governments and the TWRC and the principles guiding this relationship. The agreement provided the governments with the authority to appoint the TWRC Board of Directors and Chief Executive Officer. In addition, it authorized them to ensure that the TWRC Board accomplished its mandate in a prudent, financially accountable manner that minimized government liability and risk. Accountability of the Corporation to the governments

8 8 is secured through regular financial and performance reports and the right to review records and conduct audits. With the tri-level announcement of appointees to the TWRC Board of Directors on December 5, 2001, representatives of the three governments began the process of identifying issues to be addressed in the legislation that would create the permanent Corporation. These issues included, but were not limited to, the mandate and geographic reach of the Corporation, the role and structure of its Board, its reporting requirements, and its asset management, revenue generating and other powers. At the time, it was anticipated that legislation would be introduced in the Spring of A subsequent decision to fast track this process, however, resulted in the resolution of many of these issues being deferred from the Act to Provincial regulation or other mechanisms. Bill 151: Toronto Waterfront Revitalization Corporation Act, 2001: Bill 151 received its first reading in the Provincial Legislature on December 11, It is expected to go to Committee hearings and to receive second and third readings when the Legislature reconvenes in Spring The exact process and dates are not known at this time. The Bill sets out in general terms the objects and powers of the Corporation in regards to development of the Waterfront. It defines the composition, powers and duties of the board of directors and authorizes the City of Toronto to make appointments to the TWRC board or any subsidiary corporation and to transfer rights, assets and liabilities to the Corporation. Major components of the Bill are discussed below. The Bill itself is attached as Appendix A. Objects of the Corporation: Section 3 defines the Objects of the Corporation. These speak to the importance of encouraging development that is financially self-sustaining, encouraging participation by the private sector and ensuring public input into the development process. The City of Toronto recognizes these as priorities and major tenets of the Toronto Waterfront Revitalization Initiative. The first object is to implement a plan that enhances the value of land in the designated waterfront area and creates an accessible and active waterfront for living, working and recreation, and to do so in a fiscally and environmentally responsible manner. While this supports the City s vision of creating healthy and sustainable waterfront communities, it raises two important issues. First, it does not specify what plan the Corporation is to implement, nor does it recognize the City s Official Plan as a statutory document. Nowhere in the Bill is the Official Plan identified as a legally-binding and governing document. City staff is particularly concerned that in the absence of any recognition of the role of the Official Plan, the objects of the Corporation could be expanded by Provincial Regulation to include City planning functions. Second, both the object and the Bill refer to the designated waterfront area but do not define this area. It is the position of City officials in both Urban Development Services and Works and Emergency Services that effective development of the Central Waterfront, the area identified as requiring the greatest investment by all governments, requires improvements in the adjacent

9 9 arterial road and transit systems. It is critical that the geographic mandate of the TWRC include these systems. It is also the position of City representatives that the TWRC mandate incorporate the full 46-kilometers of Toronto waterfront. The level of investment required by the City in both financial resources and assets necessitates that benefits over the life of the revitalization project be spread across the municipality. Powers of the Corporation: Section 4 of the Bill provides the Corporation with the powers of a natural person. It permits, with consent of the three governments or by Provincial regulation, it to borrow funds, mortgage and encumber assets and raise revenues. It also requires that corporate assets be used solely to further the objects of the organization. There is a concern with the degree to which decisions in these areas could be made through Provincial regulation, a process that need not involve representatives of the City or the Federal Governments. Provincial officials have provided verbal and written assurances that decisions will be based on a consensus of the three governments. They have, however, failed to remove regulatory power from the Bill. The Board of Directors: Section 5 of the Bill allows the number of directors to increase from nine to twelve, with each government responsible for appointing four members. It is anticipated that the board will remain at its current size, nine plus the chair, for the foreseeable future. Elected officials and employees of the three governments are not permitted to serve on the board. The term of office is up to three years, with each government having the authority to replace its appointees as needed. The chair must be agreed to unanimously by the three governments. This is consistent with the TWRC governance structure approved by Council at its meeting on May 30, 31 and June 1. Business Planning: Section 8 requires that the Board adopt an annual business plan that describes: (i) (ii) (iii) (iv) its major activities and objectives for the coming year and following years; the policies and strategies to be used to achieve these objectives; the budget for achieving these objectives; and the areas of the waterfront to be developed during the year, with cost and revenue options.

10 10 The plan must be copied to each of the governments but there is no requirement for government approval. Representatives of the three governments agree that annual business plan approval is necessary to ensure the effective use of public resources. From the City s perspective it is needed to assess the impact of TWRC plans on municipal programs, services and finances in the short and long term. There is currently a verbal agreement among the governments that Bill 151 will be amended to require annual approval of business plans by all government partners prior to its final reading. Other Requirements: In addition to annual business plans, the Bill also requires that the Corporation produce annual reports with audited financial statements and that its mandate be limited to a maximum of twenty-five years. A sunset clause of 20-year is included, with an option for extension to the 25-year maximum. This is consistent with the City s understanding of the responsibilities and life span of the Corporation. Conclusion: Discussions are ongoing with Provincial representatives concerning the City s two remaining concerns with Bill 151, The Toronto Waterfront Revitalization Corporation Act: (1) the need to recognize the Official Plan as a statutory, governing document; and, (2) the need to define the geographic mandate of the TWRC in a manner that includes the adjacent transportation and transit corridors and the full 46-kilometers of Toronto Waterfront. In addition, staff are working to reduce the number of issues that are left to regulation and anticipate some amendments to Bill 151 prior to its final reading in the Spring of Formal acknowledgement of the City s concerns and a commitment to addressing them in a consensual manner that is satisfactory to all government partners is expected in writing from the Deputy Premier and Minister of Finance, Jim Flaherty, in the near future. Contact: Elaine C. Baxter-Trahair, Waterfront Project Director, Tel.: (416) Explanatory Note: Appendix A Toronto Waterfront Revitalization Corporation Act, 2001 The Bill continues the Toronto Waterfront Revitalization Corporation as a corporation without share capital. The objects and powers of the Corporation are set out, as well as the composition,

11 11 powers and duties of the board of directors. The objects of the Corporation relate to the development of the designated waterfront area, an area to be specified by regulation. The board is required to follow directions given jointly by the federal government, the provincial government and the City of Toronto. It is required to prepare a business plan each year, and to submit it to all three governments. It is also required to prepare an annual budget. The Corporation is required to give an annual report, including audited financial statements, to all three governments. The City of Toronto is authorized to make appointments to the board of directors of the Corporation, or of any subsidiary corporation. It is also authorized to transfer rights, assets and liabilities to the Corporation with the consent of the Corporation. Contents Interpretation: 1. Definitions Corporate Matters: Bill: 2001 An Act respecting the Toronto Waterfront Revitalization Corporation 2. Corporation continued 3. Objects of the Corporation 4. Powers of the Corporation 5. Board of directors 6. Powers and duties of the board 7. Directions to the board 8. Business planning 9. Financial planning 10. Annual audit 11. Annual report 12. Fiscal year 13. Winding up the Corporation General: 14. Powers of the City of Toronto 15. Regulations 16. Commencement 17. Short title

12 12 Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: Interpretation Definitions: 1. In this Act, city council means the council of the City of Toronto; designated waterfront area means the land specified by regulation; federal government means the Governor General in Council; provincial government means the Lieutenant Governor in Council. Corporate Matters Corporation continued 2. (1) The Toronto Waterfront Revitalization Corporation established on November 1, 2001 under the Business Corporations Act is hereby continued as a corporation without share capital under the name Toronto Waterfront Revitalization Corporation in English and Société de revitalisation du secteur riverain de Toronto in French. Composition: (2) The Corporation is composed of the members of its board of directors. Status: (3) The Corporation shall be deemed not to be a crown agent within the meaning of the Crown Agency Act. Conflict of interest, etc.: (4) Section 132 (conflict of interest), subsection 134 (1) (standard of care) and section 136 (indemnification) of the Business Corporations Act apply, with necessary modifications, to the Corporation and to the members of its board of directors. Corporate law: (5) The Corporations Act and the Corporations Information Act do not apply to the Corporation. Cancellation of shares: (6) The shares of the Corporation that are issued and outstanding immediately before this section comes into force are cancelled when this section comes into force, and no amount is payable to any shareholder in respect of the cancelled shares.

13 13 Objects of the Corporation: 3. (1) The following are the objects of the Corporation: 1. To implement a plan that enhances the value of the land in the designated waterfront area and creates an accessible and active waterfront for living, working and recreation, and to do so in a fiscally and environmentally responsible manner. 2. To ensure that ongoing development in the designated waterfront area can continue in a financially self-sustaining manner. 3. To promote and encourage the involvement of the private sector in the development of the designated waterfront area. 4. To encourage public input into the development of the designated waterfront area. 5. To engage in such other activities as may be prescribed by regulation. Same (2) The Corporation shall carry out its objects so as to ensure that the revitalization of the designated waterfront area creates new economic growth, new jobs, diverse and dynamic new commercial, residential and recreational communities, new cultural institutions and new parks and green spaces for the public. Powers of the Corporation: 4. (1) The Corporation has the capacity, rights, powers and privileges of a natural person for carrying out its objects, except as limited by this Act. Use of assets, etc.: (2) The assets and revenue of the Corporation must not be used for any purpose except to further the objects of the Corporation. Restriction on borrowing: (3) The Corporation shall not borrow money unless it has the consent of the federal government, the provincial government and city council or unless it is authorized to do so by a regulation. Same: (4) The Corporation shall not mortgage or otherwise encumber any of its assets unless it has the consent of the federal government, the provincial government and city council or unless it is authorized to do so by a regulation. Restriction re revenue: (5) The Corporation shall not raise revenue unless it has the consent of the federal government, the provincial government and city council or unless it is authorized to do so by a regulation.

14 14 Restriction re subsidiary corporations: (6) The Corporation shall not establish a subsidiary corporation unless it has the consent of the federal government, the provincial government and city council. Same: (7) The objects and powers of any subsidiary established by the Corporation are subject to the restrictions set out in the regulations. Board of directors 5. (1) The board of directors of the Corporation is composed of the following members: 1. A maximum of four members appointed by the federal government. 2. A maximum of four members appointed by the provincial government. 3. A maximum of four members appointed by city council. 4. A maximum of one member appointed jointly by the federal government, the provincial government and city council. Eligibility: (2) A person is not eligible to hold office as a board member if he or she holds a public office to which he or she is elected or is an employee of Her Majesty in right of Canada or an agency of Her Majesty in right of Canada, Her Majesty in right of Ontario or an agency of Her Majesty in right of Ontario or the City of Toronto or a local board of the City. Term of office: (3) The term of office of a board member is determined by the person or persons who appoint the member, and may not exceed three years. Reappointment: (4) A board member is eligible to be re-appointed. Chair: (5) The board member appointed jointly by the federal government, the provincial government and city council is chair of the board. Same: (6) In case of the absence or illness of the chair or there being a vacancy in the office of chair, the member designated by the board for the purpose shall act as and have all the powers of the chair. Remuneration and expenses: (7) Board members are to be paid such remuneration and expenses as the board may, by by-law, determine.

15 15 Transition: (8) Despite subsections (1), (2) and (3), the persons who are members of the board of directors of the Corporation on the day this section comes into force continue to hold office for the remainder of their term or until the third anniversary of the day this section comes into force, whichever is the shorter term. Powers and duties of the board: 6. (1) The board of directors shall manage and supervise the affairs of the Corporation in accordance with this Act. Same: (2) The board shall exercise its powers and perform its duties in a financially responsible and accountable manner. By-laws: (3) The board may pass by-laws and resolutions regulating its proceedings and generally for the conduct and management of the affairs of the Corporation. Directions to the board: 7. (1) The board of directors shall follow such directions concerning the operation of the Corporation as may be set out in a written agreement of Her Majesty in right of Canada, Her Majesty in right of Ontario and the City of Toronto. Notice of directions: (2) The board of directors shall be deemed to have notice of the directions set out in a written agreement when a copy of the agreement is given to the chair of the board and to the chief executive officer of the Corporation. Business planning: 8. (1) At least 90 days before the beginning of each fiscal year, the board of directors shall adopt a business plan for the fiscal year. Contents: (2) The business plan must include the following information: 1. A description of the major activities and the objectives of the Corporation for the year and for following years. 2. A description of the policies and strategies of the Corporation to achieve those objectives. 3. A description of the budget of the Corporation for achieving those objectives. 4. A description of the portions of the designated waterfront area that the Corporation plans to develop during the year, the estimated cost of doing so and the funding options available.

16 16 5. Such other information as may be required by regulation. Notice: (3) The board of directors shall give a copy of each business plan to the Minister of Transport (Canada), the Minister of Finance and the Mayor of the City of Toronto. Financial planning: 9. (1) The Corporation shall establish an accounting system that is consistent with generally accepted accounting principles. Annual budget: (2) At least 90 days before the beginning of each fiscal year, the board of directors shall adopt a budget for the year. Same: (3) The budget must include, (a) all revenue the Corporation anticipates receiving for the year and any accumulated surplus from previous years; and (b) all operating expenses that the Corporation anticipates incurring for the year and any accumulated deficit from the preceding year. Inspection of financial records: (4) Upon the request of the federal government, the provincial government or city council, the Corporation and its subsidiaries, if any, shall promptly make their financial records available for inspection. Annual audit: 10. The board of directors shall ensure that the accounts and transactions of the Corporation and its subsidiaries, if any, are audited each year by one or more auditors licensed under the Public Accountancy Act, who are appointed by the board. Annual report: 11. (1) The Corporation shall give an annual report on its affairs to the Minister of Transport (Canada), the Minister of Finance and the Mayor of the City of Toronto within 90 days after the end of each fiscal year. Same: (2) The annual report must include the audited financial statements of the Corporation for the applicable fiscal year. Public inspection: (3) The Corporation shall make a copy of the annual report for inspection by the public upon request.

17 17 Fiscal year: 12. The fiscal year of the Corporation begins on April 1 in each year and ends on March 31 in the following year. Winding up the Corporation: 13. (1) The provincial government may, by order, require the board of directors to wind up the affairs of the Corporation on or after the twentieth anniversary of the date on which section 2 comes into force. Restriction: (2) The provincial government shall not make an order under subsection (1), (a) (b) (c) if the federal government, the provincial government and city council agree to undertake a review of the Corporation; if the review is completed at least 3 months before twentieth anniversary of the date on which section 2 came into force; and if the person undertaking the review recommends that the Corporation not be wound up before the twenty-fifth anniversary of the date on which section 2 came into force. Mandatory winding up: (3) If no order is made under subsection (1), the provincial government shall, by order, require the board of directors to wind up the affairs of the Corporation promptly after the twentyfifth anniversary of the date on which section 2 comes into force. Duty of board: (4) The board of directors shall wind up the affairs of the Corporation in accordance with any plan prepared by the board and approved by the federal government, the provincial government and city council and in accordance with such additional requirements as may be set out in the regulations. Transfer of assets and liabilities: (5) The regulations governing the winding up of the Corporation may require the transfer of assets and liabilities to Her Majesty in right of Ontario and to the City of Toronto, and may provide for their transfer to Her Majesty in right of Canada upon consent. General: Powers of the City of Toronto: 14. (1) The City of Toronto is authorized to make appointments to the board of directors of the Corporation and of any subsidiary of the Corporation.

18 18 Same, asset transfer: (2) The City of Toronto is authorized to transfer rights, assets and liabilities to the Corporation or any subsidiary of the Corporation, despite section 111 or 193 of the Municipal Act, with the consent of the Corporation. Regulations: 15. (1) The provincial government may make regulations prescribing those matters that are required or permitted by this Act to be prescribed or done by regulation. Scope of regulations: (2) A regulation authorizing the Corporation to exercise a power described in subsection 4 (3), (4) or (5) may impose conditions or restrictions with respect to the exercise of the power. Commencement: 16. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor. Short title: 17. The short title of this Act is the Toronto Waterfront Revitalization Corporation Act, The also submits the following joint report (January 28, 2002) from the Commissioner, Urban Development Services and the City Solicitor: Purpose: To address issues and concerns raised by the Waterfront Reference Group at its meeting on January 9, 2002, regarding Bill 151, Toronto Waterfront Revitalization Corporation Act, Financial Implications and Impact Statement: There are no financial implications resulting from the adoption of this report. Recommendations: It is recommended that: (1) this report be considered in conjunction with Item No. 18 of the January 31, 2002, Policy and Finance Committee Agenda regarding Bill 151 the Toronto Waterfront Revitalization Corporation Act, 2001; (2) City staff request the following amendments to the Toronto Waterfront Revitalization Corporation Act, 2001, in addition to those recommended in the above noted clause: (a) that Provincial representatives be requested to amend Bill 151 by removing the words or unless it is authorized to do so by regulation wherever they appear in

19 19 the Proposed Legislation or by stating that no regulation may be issued without consent of City Council and the Federal Government; (b) (c) That sections 8(3) and 11(1) of the Proposed Legislation be amended to add the words and Council after Mayor ; and, That the first object of the TWRC (s.3(1)1 Bill 151) be augmented to include enhances the ecological, economic, social and cultural value of the land ; (3) the Chair of the Board of Directors of the TWRC be requested to provide a copy of proposed guidelines on conflict of interest for directors and officers of the TWRC to the Waterfront Reference Group as soon as they are available; (4) the TWRC Board of Directors be asked to develop a policy that is acceptable to the three governments that addresses public consultation and public reporting of its activities; (5) City staff, through the Intergovernmental Steering Committee, work to resolve issues related to Bill 151 in a manner that reflects the principles of the long-term governance structure approved in principle by the three levels of government in 2001; (6) City staff work with representatives of the TWRC to ensure receipt of financial reports and other required information at an appropriate time in the City s budget process; (7) City staff report to the Waterfront Reference Group on amendments made to the Proposed Legislation as it proceeds through the legislative process; and, (8) the appropriate City officials be authorized and directed to take the necessary action to give effect to those recommendations. Background: The Waterfront Reference Group, at its meeting on January 9, 2002, considered the report from the Commissioner of Urban Development Services regarding Bill 151 the Toronto Waterfront Revitalization Corporation Act, 2001 (Proposed Legislation). This legislation, when enacted, will create the permanent Toronto Waterfront Revitalization Corporation (TWRC). The report identified four primary concerns with the proposed legislation and recommended that staff continue to work with Provincial representatives to ensure that the City s interests and priorities are properly addressed in the Toronto Waterfront Revitalization Corporation Act, when enacted, as well as in subsequent Provincial regulations and other intergovernmental agreements impacting the Act. Specific concerns identified in the report were: (1) the need to recognize the City s Official Plan as a statutory, governing document; (2) the need to define the geographic mandate of TWRC in a manner that includes the adjacent transportation and transit corridors and the full 46-kilometers of Toronto waterfront;

20 20 (3) the significant number of issues which the legislation proposes be addressed through Provincial regulation; and (4) the need for the three levels of government to approve TWRC s business plans on an annual basis. The Waterfront Reference Group at its meeting on January 9, 2002, requested that the Commissioner of Urban Development Services, in consultation with the City Solicitor, report to the on a variety of issues relating to the Proposed Legislation. On January 11, 2002, the Deputy Premier and Minister of Finance wrote to Mayor Lastman and the Federal Minister of Transport regarding the Proposed Legislation. A copy of the letter is attached as Appendix 1. The Deputy Premier s letter, among other things, recognizes the importance of the three governments approval authority over the annual business plans of the TWRC. Discussion: The Waterfront Reference Group raised a number of issues and concerns regarding provisions in the Proposed Legislation. They are discussed in the following sections. Conflict of Interest: Section 2(4) of the Proposed Legislation provides that s. 132 (conflict of interest) of the Ontario Business Corporations Act (OBCA) applies, with necessary modifications, to TWRC and the members of its board of directors. The Waterfront Reference Group requested comments on whether or not it should be the Municipal Conflict of Interest Act ( MCIA ) provisions, which apply to TWRC. The fundamental objective of the conflict of interest provisions in the OBCA and the provisions in the MCIA are the same, namely, to ensure that members of councils, local boards and boards of directors do not use their offices for private gain. The basic elements of both sets of provisions also are the same, and provide for the following: (1) determination as to whether or not a member has a conflict (a pecuniary interest under the MCIA; a material interest under the OBCA); (2) if there is a conflict: disclosure of the conflict and the general nature of the conflict, and refraining from participation in the decision-making process regarding the matter or transaction in question; and (3) in the event of failure to comply with these requirements, consequences both for the non-complying member and for the agreement or matter in question (which in certain circumstances may be set aside).

21 21 In certain respects, the conflict of interest provisions in the MCIA are more strict than those in the OBCA. In particular: (1) where there is a conflict, the prohibition against participating in the decision-making process is broader under the MCIA than under the OBCA; and (2) the consequences to a member of council or a local board for not complying with the provisions of the MCIA are more onerous than the consequences for directors. In both cases, the member/director may be required to account for any profit or gain realised. For a member of council or a local board, the court may declare the member s seat vacant, and disqualify him or her from holding office for up to seven years. It is extremely important that officers and directors of the TWRC comply with very high standards in the handling of conflicts of interest. Although in some respects the MCIA conflict of interest provisions are stronger than those of the OBCA, it would be preferable to strengthen the conflict of interest provisions that apply to the directors of the TWRC by developing a specific policy that would apply over and above the provisions of the OBCA. This is the usual approach to establishing stricter conflict of interest requirements for a board of directors. The policy can be tailored to the role, objects and activities of the Corporation. Report No. 7 of the regarding Governance Structure and Funding to Implement the Toronto Water Revitalization Initiative (Governance Structure Funding Report), as adopted by Council at its meeting held on May 30, 31 and June 1, 2001, recommended that the board of directors develop appropriate policies on, among other things, conflict of interest, and that the governments would have the right to substitute agreed-to policies with notice. The Chair of the Board of Directors of TWRC is conscious of the importance of comprehensive conflict of interest guidelines in a project of this magnitude and has secured the expertise necessary to develop a policy for the board that would build on those requirements of the OBCA. Representatives of TWRC have agreed to forward these guidelines to the three governments for review upon their completion. Section 132 (conflict of interest) of the OBCA, augmented by an appropriate conflict of interest policy, would establish appropriate provisions regarding conflict of interest for the TWRC. The policy could provide that failure to comply would lead to removal from the board of directors. As a matter of interest, the OBCA conflict of interest standard applies to a number of other corporations of which the City is a shareholder or the sole shareholder, such as TEDCO, Enwave and Toronto Hydro Corporation. Public Consultation and Open Meetings: The Waterfront Reference Group requested comments from staff as to whether or not the Proposed Legislation should require that all meetings of the TWRC be open to the public, except in circumstances in which the Municipal Act would permit closed meetings.

22 22 Clearly it is desirable that TWRC provide information to the public and to seek public input. It is important to keep in mind, however, that TWRC will not make public policy. Policy decisions remain with the governments, and there will be public debate on these issues. The role of the board of directors is to manage the business and affairs of TWRC. To do that effectively members of the board must be able to have full and private discussions. The governance structure approved in principle by Council at its meeting on May 30, 31 and June 1, 2001, requires that TWRC consult with the public, and hold an annual public meeting with directors and officers of the Corporation in attendance. The Proposed Legislation requires that TWRC provide annual reports including audited financial statements each year, and make those reports available to the public. TWRC will be required to report to Council. It would be appropriate to make provision for public consultation and information, including an annual public meeting, in a policy adopted by the board of directors which is acceptable to the three levels of government, or in a memorandum of understanding between the three levels of government and TWRC. Addressing the issues of openness and public participation in this manner provides greater flexibility and scope than does application of the requirements of s. 55 of the Municipal Act. Corporations Act: The Waterfront Reference Group requested comments on implications of s.2(5) of the proposed legislation which provides that the Corporations Act does not apply to TWRC. The three levels of government always intended that TWRC would be a non-share corporation. Such a corporation could be created under the Ontario or Canada Corporations Act, or by statute. TWRC is to be created by statute. It is not unusual in such cases for the legislation to provide that the Corporations Act does not apply, as the provisions of that act are somewhat outdated. It also is quite typical, whether the corporation is created by statute or pursuant to the Corporations Act, to incorporate by reference certain governance provisions from the newer OBCA. S. 2(4) of the proposed Legislation incorporates certain OBCA governance provisions for TWRC, and this is appropriate. The Use of Provincial Regulation: The Waterfront Reference Group raised significant concern as to the number of material issues that the Proposed Legislation potentially leaves to Provincial regulations for resolution. Concerns are augmented by a statement in the Deputy Premier s letter which reads potential empowerment and design issues under consideration (for the TWRC) may entail significant fiscal, jurisdictional and public policy impacts on one or more level of government. As Bill 151 currently reads, regulations could direct the activities of TWRC, as well as its ability to borrow money, mortgage or encumber its assets and generate revenue. While the Deputy Premier s letter does confirm the Province s intent to resolve these issues in partnership with municipal and federal officials, the lack of municipal control in the regulation process places the City at substantial risk in terms of how its waterfront is revitalized. A more appropriate approach would be to have the three levels of government address these issues in partnership. It is, therefore, recommended that Provincial representatives be requested to amend the Proposed Legislation by removing the words or unless it is authorized to do so by

23 23 regulation wherever they appear in the proposed legislation or by stating that no regulation may be issued without consent of City Council and the Federal Government. Other Concerns of the Waterfront Reference Group: The Waterfront Reference Group proposed that sections 8(3) and 11(1) of the Proposed Legislation be amended to add the words and Council after Mayor, thus requiring that TWRC s annual business plans and annual reports be submitted both to the Mayor and Council, and requested staff comments on that proposal. It is recommended that this proposed amendment be communicated to Provincial officials for inclusion in the Legislation prior to its enactment. The Waterfront Reference Group also proposed that the first object of TWRC (s.3(1)1 Bill 151) be changed from: to to implement a plan that enhances the value of the land in the designated waterfront area and creates an accessible and active waterfront for living, working and recreation, and to do so in a fiscally and environmentally responsible manner. to implement a plan that enhances the ecological, economic, social and cultural value of the land in the designated waterfront area and creates an accessible and active waterfront for living, working and recreation, and to do so in a fiscally responsible and environmentally advanced manner. and requested staff comments on the proposed change. S. 3(1)1 raises a number of issues which City officials continue to discuss with their Provincial and Federal counterparts. The provision calls for implementation of a plan. The City has requested that the legislation specifically refer to the City s Official Plan as a statutory governing document. The policies contained in the Official Plan and in the Central Waterfront Part II Plan, once approved by Council, reflect the City s commitment to enhancing the ecological, economic, social and cultural value of land in the waterfront. Specifically identifying these values in Bill 151, however, sends as positive message to the TWRC and to the public. Reference to the Official Plan, including the Central Waterfront Plan may lead to an overall amendment of s.3(1)1. Revitalizing the waterfront in a fiscally responsible and environmentally advanced manner (or, as a possible alternative, acting in a manner, which displays environmental leadership ) must also be considered and addressed as part of the TWRC Business Planning process. This business plan, when complete, will be subject to Council approval. City staff will continue to pursue refinement to this clause through the amendment stage of the legislative process and report back to the Waterfront Reference Group.