Michael Lewis
Special to Ontario Construction News
The Residential Construction Council of Ontario (RESCON) is preparing a challenge to Toronto’s Green Standard for new on which lacks legal authority and undermines the provincial and national building codes, says RESCON President Richard Lyall.
“We’re looking at a legal challenge on this,” Lyall told Ontario Construction News. He said outside counsel for RESCON are preparing a claim to be filed in provincial court “in another number of weeks. We haven’t got an exact date, but we do plan to proceed.”
A lawyer for the outside firm did not respond to a request for comment.
“I think we have to pick a particular municipality,” among the urban and rural districts in Ontario that have adopted or are developing green standards for new buildings, Lyall said.
“The plan is we’re looking at Toronto. My understanding is that it is a novel argument but were trying to make a point.” The Ontario Building Code Act is a predictable and uniform law “that must be followed.”
A city spokesperson said officials “are not aware of any legal action against the City of Toronto regarding the Green Standard,” declining further comment.
Lyall said RESCON, whose membership includes most of the province’s residential; builders, questions whether individual municipalities have the legislative authority to affect higher than code conditions for building permit approval. “We’d either like to see the building code enforced or the law changed.
“You’ve got different municipalities going off in different directions and a lot of this stuff doesn’t take into consideration our housing supply deficit and the effect it has on what we can produce.”
He added that Green Standard provisions requiring developers to use certain vendors limits competition, impedes building and inflates development costs.
“That doesn’t mean to say we do nothing, but we’ve got to prioritize some things here right now,” Lyall said, suggesting as well that municipalities have set unrealistic timelines and are rushing implementation of green development standards.
RESCON in a statement last year said the provincial building code takes precedence over all other legislation affecting the built form and technical construction details, “including bylaws that are set by municipalities.”
The Planning Act and site plan control can be used by municipalities to regulate the look and character of a building, but they cannot be used to establish requirements for the physical construction of a building or materials.
“This is clear in the site plan control guide of the Ministry of Municipal Affairs and Housing,” the statement said.
National and provincial building codes are already working to make homes greener and more energy efficient, the statement said, noting that the federal Emissions Reduction Plan requires residential buildings to use 61 per cent less energy by 2025, and 65 per cent less by 2030.
RESCON’s potential challenge to Toronto’s Green Standard comes as city council’s infrastructure and environment committee late last month confirmed its support for a “renewed focus and coordinated approach to climate resistance.”
The committee considered an update report on progress toward its Net Zero by 2040 target, one of North America’s most ambitious, that showed emissions for 2021 were 41 per cent below 1990 levels.
The council has set a goal of a 45 per cent reduction by 2025 and 65 per cent by 2030. The report shows city emissions tracking above all scenarios needed to reach the goals, leaving an “emissions gap.
“The city’s goal of net zero is at risk unless the city, other levels of government, residents and business support and invest in transformative actions,” the report said.
It notes that natural gas to heat buildings accounts for more than half of the city’s GHG emissions and says accelerated timeliness now require any new building development application to be net zero by 2028.
City owned developments are already required to meet net zero requirements.
The TGS has been in force since 2010 with the latest version setting out an energy and emissions cap for new buildings 25 per cent to 30 per cent above the minimum requirements of the Ontario Building Code.
Developers who build to the higher standards are eligible for partial rebates of development charges.
The report says the uptake of rebates has dropped off partly due to market conditions and as a response it has initiated a 2024 study to review TGS buildings energy and emissions targets and construction costs.
Toronto says its Green Standard is helping new developments reduce emissions by 15,000 CO2e (carbon dioxide equivalents) per year.