Charter File

Arrondissement de Rosemont−La Petite-Patrie

While shoreline citizens of the Jeanne-d’Arc/Charlemagne alley approve of its greening project, they are opposed to the simultaneous closing of two accesses on Jeanne d’Arc Avenue. These closings were set forth by the Borough Council. The citizens claim that the prior consultation process was flawed due to lack of clarity and transparency.

Applicable Principles

The Borough Council has the authority to enact the closing of an alley and access.

Although the survey of nearby residents constitutes an important step, it is not, however, bounding on the Borough Council.

The OdM has no jurisdiction to investigate Borough Council decisions. The only exception to this rule is when the Montréal Charter of Rights and Responsibilities (Charter) is at stake.

The Charter provides for commitments regarding the safety of installations and public participation on its territory.

Shoreline Residents Consultation

It is the Green Lane Committee which conducted a survey of shoreline residents to support its request for the greening and obstructions of the alley, as provided for in the Borough’s Guide d’aménagement d’une ruelle verte.

In response to questions targeting only one access entrance at a time, the majority of shoreline residents were in favour of closing each of the two access entrances.

The wording of the survey does not establish that a majority of respondents were in favour of simultaneously closing the two entrances.

There is, however, no evidence of bad faith.

Our Findings

The disputed closings are somewhat inconvenient but do not pose a safety issue.

The OdM cannot therefore intervene against the Borough Council’s decision.

Improving Processes

In light of our comments, the Borough nevertheless commits to improve communication and consultation processes with shoreline residents for green lane projects. Going forward:

• The eco-neighbourhood will have to produce in writing a detailed report of the first information session with shoreline residents.

• Survey questions regarding potential obstructions of the alley and its accesses will be more precisely worded in order to prevent interpretation issues.

• Namely, each envisaged obstruction scenario (including each possible combination) will be the subject of a separate question.

Charter File

Arrondissement de Montréal-Nord

Following an enquiry, the Borough had committed to produce an information package including an Information Sheet describing all requirements needed before conducting a construction or transformation project.

We are forwarded a first version. We note that two important and costly items that were an issue in a previous file are missing (obligation to replace the sewer and aqueduct pipe fittings and obligation to install a submersible pump). After a few reminders, these two items are included.

This guide is now provided to any citizen who deals with the Borough when applying for a Construction or Transformation Permit. Thus, citizens are thoroughly informed at the outset about the requirements, reducing their risk of facing unexpected additional fees!

One of our investigations revealed gaps in the broadcast and availability of information regarding the respective responsibilities of citizens and the City, with regard to the maintenance of aqueduct and sewer pipes, in Arrondissement de Côte-des-Neiges – Notre-Dame-de-Grâce.  To relieve these lapses, the Borough decides to prepare an information pamphlet on the subject, for citizens.  Our office agrees with the approach and follows the evolution of the project.  Since then, every time an employee of the Borough goes to a citizen’s residence for an aqueduct or sewer problem, this pamphlet is given to the concerned citizen.

As part of an investigation regarding a referendum approval process in Arrondissement Le Sud-Ouest, our office had concluded that the procedure followed was consistent with law requirements. We had nonetheless suggested some possible areas of improvement.

One of these suggestions related to the content of the public notice which is published in newspapers to invite citizens concerned by a referendum approval process to sign a register.

This notice mentions that in order to sign the register, the person has to be a qualified voter entitled to have his name entered on the referendum list and to sign the register. Yet, one of the requirements to qualify as such is to reside in one of the areas surrounding the project subject to a referendum. The notice already specified that in order to prove their identity, citizens could use their health insurance card, their driver’s license or their passport. It did not mention, however, that citizens could also be required to provide proof of their residential address.

In the complaint we had received, some people who had shown up with their health insurance card or their passport had not been authorized to sign the register because they could not provide evidence of their address. Following our intervention, the Borough committed to study the issue.

In 2013, the Borough confirmed that the wording of its public notice had been modified with the addition of the following:

“Qualified voters must establish their identity by presenting their health insurance card delivered by the Régie de l’assurance-maladie du Québec, their driver’s license or probationary license on a plastic support delivered by the Société de l’assurance automobile du Québec or their Canadian passport as well as a proof of residence or ownership, as appropriate.” (our translation)

We consider this modification as a significant improvement and may invite other Boroughs to follow suit so as to increase the clarity of their own public notices.

Some tenants of the Société d’habitation et de développement de Montréal (SHDM) were complaining of the way rent increases were calculated. Furthermore, some decisions from the Régie du logement had captured our attention. We intervened, therefore, with the SHDM to understand the rules applied and discuss areas for improvement.

We discovered that there was no official written procedure detailing the methods for calculating rents or rent increases intended for building managers, administrative staff or other SHDM employees. Hence, we suggested to SHDM that it should develop a written procedure so as to make the rules clear and their application consistent.

Our suggestion was welcomed and a new procedure was adopted.

This new procedure confirms the general principle under which SHDM shall rent its dwellings according to the concept of “affordability” as defined by the competent authorities. The procedure then details the rules that must be respected in different situations: rent calculation for a new tenant, rent increase (for renewals), information to be provided in procedures before the Régie du logement.

Amongst others, the following rules were confirmed:

• Since it is refundable, the GST paid by the SHDM must not be included as an expense;
• When work is done in a dwelling, the costs associated to this work must be taken into account only with regard to the rent for that dwelling;
• In case of major work in a building, every portion of the work covered by a grant must be excluded and not considered as an expense;
• When there are non-residential units in a building, the cost of major improvements and repairs made for the sole benefit of these premises must not be taken into account when calculating rent increases for the residential units.

The adoption of a clear written procedure is a major improvement which should be beneficial in many ways:

• Clarity of terms;
• Uniformity of application;
• Transparency;
• Better understanding of rules by new employees;
• Rapid and consistent implementation in case of future modification of rules.

In December 2011, Arrondissement Le Plateau-Mont-Royal informed some residents that it was setting up new SRRR zones (street parking reserved for residents) in their area, as of February 2012. Citizens were surprised of this decision since a recent survey conducted by the borough, in June 2011, had probably shown that citizens were against this idea.

Citizens tried in vain to get explanations. There was no information on the survey results or any explanation for this decision on the borough’s Web site. When citizens would call the borough, they were unable to obtain clear information. Following a formal request under the Right of Access to information laws, asking for the results of the survey, the borough had only responded that “no document corresponding to your request had been found”.

Our investigation showed that responses to the survey were never compiled, due to a new orientation adopted by the Borough Council, in its 2012 budget, to “increase the target of local revenue, namely by […] the creation of new SRRR zones”. This prerogative belongs to elected officials and our office had no jurisdiction to intervene in this matter.

We found, however, that the borough had lacked transparency towards its residents by not informing them of the change of orientation and not providing any explanation for this new decision. In our opinion, the borough should have notified the residents, quickly and in writing, that the survey would not be taken into account since the Borough Council had adopted a new approach.

The borough assured us that, in the future, it would pay special attention to the transparency, sufficiency and clarity of its communications with citizens and, more specifically, in files related to the management of parking spaces. A recent follow-up showed compliance to this commitment.

When a public consultation is launched, through a referendum approval process, Arrondissement Le Sud-Ouest distributes an information booklet on the project in the mailboxes of all residents of the concerned area. This initiative, which goes beyond the legal obligations in referendum approval, is commendable and, in our opinion, it is a practice that other boroughs should also follow.

This good practice could, however, create certain expectations in citizens who received this booklet, namely: that all future information or documents regarding the same project would also be distributed to them, in the same manner.

We suggested to the borough to modify this information booklet, in order to clearly indicate that future information would not be distributed to them in their mailboxes, and that citizens interested by the evolution of the project should get informed by other means.

Following our intervention, the following notice was added at the bottom of the information booklet (translation):

“The present booklet is distributed door-to-door in the area concerned by the project under study. You will not receive further communications delivered directly to your address. We invite you, therefore, to follow the progress of this project on the borough’s Web site, as well as in the La Voix Pop newspaper (Public notices).”

This notice has the double advantage of solving the problem we had noted while informing citizens on the means available to follow the evolution of the file, that may affect them.

This is an excellent measure likely to encourage citizen participation, in the City’s affairs.

A citizen complained about the way a Public Consultation was conducted by Arrondissement de Pierrefonds-Roxboro and submitted that many undertakings stated in the Montréal Charter of Rights and Responsibilities (MCRR) were not respected.

We analyzed this complaint in light of various parameters, such as: the legislative, statutory and other applicable frameworks; the comments and recommendations issued by the Office de consultation publique de Montréal after a Public Consultation involving Arrondissement de Pierrefonds-Roxboro; and the good practices generally recognized with regard to public consultations.

Following our investigation, we issued numerous comments and ideas for improvement to the borough which welcomed them all. Here are the basics:

a) Scope of the Consultation

The global project for the review of all urban planning By-laws included many projects of zoning change. At the end of the process, sixty zoning changes were adopted as part of this global project, while eleven such projects were excluded. In our opinion:

o The borough’s decision to exclude these eleven zoning change projects from the global project was appropriate in light of the importance of this type of changes for the residents of the areas affected;

o However, more zoning change projects should have been excluded from the global project i.e. all of those likely to have an impact on the immediate environment of the residents;

o Such an approach would have been more consistent with the spirit and the letter of the Act Respecting Land Use Planning and Development and of section 16 of the MCRR;

b) Quality of the information put at the disposal of citizens

In section 16 of the MCRR, Ville de Montréal undertakes to encourage and promote citizen participation by providing citizens “useful information stated in a clear language”.

Moreover, Ville de Montréal’s Public Consultation and Participation Policy states that Ville de Montréal should: “before any consultation, produce and communicate complete, objective, relevant, user-friendly and accessible information on the policy, the project or the program that is the subject of the consultation”.

(Our emphasis)

Considering this framework, we submitted to the borough:

o That it would have been appropriate for the borough to provide the citizens, from the beginning, with a simplification document explaining, in a clear language, the main directions of this global project, as well as the most important changes suggested;

o That this document should have clearly informed the citizens of every zoning change project integrated in the general remodel, as well as of the relevant procedures to challenge them.

o That in order to properly inform citizens and encourage public participation, the borough should have made available more quickly, from the beginning, and at the same time as the draft by-laws, the documents explaining the projects regarding zoning and, more particularly, its documents entitled Zoning change – Annotated plan and explanatory chart – Zoning change.

c) Clarity of the information

The final draft of the proposed By-laws to be submitted to the Borough Council, for its approval, were put on the borough’s Website with a note stating: “The present document is a preliminary version of the By-law (…)”. This created confusion for citizens. The projects should have been identified as the final version, in view of their adoption.

d) Accessibility of the information

All of the documents regarding this Consultation, including the modifications brought during the process, should have been put at the disposal of the public on the borough’s Website and in all of the service points where the initial documentation had been made available, namely: the borough’s office and 2 libraries (Pierrefonds and Roxboro). This was not the case for some documents.

The Minutes produced following the 2 Public assemblies and the Chart summarizing the Open House activities were never put at the disposal of citizens. We believe these documents should have been made accessible, in the 3 service points.

e) Accessibility of the Public Consultation process

Citizens who wanted to submit written comments could not hand-in handwritten documents: this requirement may have had an exclusionary effect.

Despite the constraints that can arise from reading handwritten documents, a more inclusive approach should have prevailed: the borough should have accepted Memoirs and comments of citizens that were not typed, with the condition that they be easily readable.

Results

The borough confirmed that these suggestions and comments for the improvement of the processes would be implemented, for all future Public Consultations. This positive reaction is very much in line with the approach advocated by our office, namely the continuous improvement of the procedures and processes of the municipal administration.

The plaintiff was satisfied with the results.

A citizen is challenging a zoning change regarding 5e avenue Nord, adopted by Arrondissement de Pierrefonds-Roxboro, despite opposition from the area’s citizens.

Prior to this modification, the construction of 5 to 8-storey buildings was permitted on this street: with the new zoning, only buildings of 3-storey or less are allowed.

This zoning change was first presented in the By-law Project 1047-214 which, like all zoning changes, was subject to the referendum approval procedure. A sufficient number of citizens having requested it, the borough had to open a Registry on this project and, according to the results obtained, possibly hold a referendum.

However, these same zoning modifications were included in another, more general By-law project, the By-law project CA29 0040, which contained many zoning changes. The number of citizens who signed the Registry relating thereto was insufficient and, consequently, the borough was not required to hold a referendum: it therefore adopted this project.

Considering that the zoning change they were concerned about had been subject to a specific By-law project which had been rejected, the plaintiff and her neighbours felt cheated: they challenged the fact that the same project had been reintroduced in a much larger By-law project (CA29 0040) which was finally adopted.

Following our investigation, we agreed that the process surrounding this zoning change should not have unfolded this way.

Arrondissement de Pierrefonds-Roxboro recognized its error and confirmed its willingness to restore the old zoning regulations providing, however, that it was truly the wish of the majority of the residents concerned. It found, indeed, surprizing that citizens would want to restore a zoning permitting the construction of 5 to 8-storey buildings whereas the new regulations only allows 3-storey buildings. Consequently, citizens were asked to demonstrate such generalized willingness.

At first glance, our office agreed that the new rules seem less likely to cause drawbacks for the neighbourhood (sunlight, parking, traffic, etc.): the borough’s approach, therefore, appeared reasonable.

A citizen complained about a persistent noise problem, when passing over a broken catch-basin cover, near his residence. He claimed to be greatly inconvenienced by this noise, particularly at night.

The citizen mentioned that he had, fruitlessly, complained many times at the Accès Montréal Office (BAM) of Arrondissement de Ville-Marie.

Following our intervention, the borough replaced the catch-basin cover. Thus, the noise problem was solved.

On the other hand, our office also looked at the way this file had been handled.

Our investigation confirmed that the citizen had submitted 8 requests to the BAM, regarding this problem, but never got any information on the processing of his request or on the development of the file. Among other things, we noted that the Computerized tracking statement of his requests did not specify the nature of the interventions made by the borough’s employees, to address the problem.

The borough director sent a Memo to all of his employees requesting that they describe in a more precise manner, in each file, the nature of their interventions so BAM employees can better inform citizens when they call back for information.

The OMBUDSMAN DE MONTRÉAL will follow up in 2012, to verify the compliance with this directive and its impact.

Following many complaints, we noted that the wording of the Demande de permis de transformation form could be misleading. This form is used in all of the boroughs.

Citizens who plan to undertake modification work on their building must first complete the said form to have their project approved by the zoning and planning department of their borough. According to the applicable By-Laws, the amount they are required to pay, when they file this Application, covers the costs for studying their request. But on the form, the amount appeared under the heading “Coût du permis”, which means “Cost of Permit”.

When the permit was denied, some citizens would ask for a refund, on the basis that since no permit had been issued, they should not be charged any “Cost of Permit”: the City would deny these requests, in accordance with the relevant By-Law.

We looked into this matter and asked that the wording of the form be modified so that the words “Coût du permis” be replaced by “Frais d’étude”, which means “Evaluation fee”. That has already been done.

In the course of this process, the following forms were also modified, in the same fashion: Demande de permis; Demande de certificat d’autorisation; Demande de lotissement; and Demande d’installation septique.

Some construction or renovation projects undertaken by citizens require the moving of municipal infrastructures such as a driveway access or a drain. The costs related to such work must be paid by the citizens concerned and they can be quite expensive. It is, therefore, important that citizens be well informed, as soon as possible, of the extent of the costs they may have to incur in this regard, in order for them to better plan their budget.

In the course of an investigation we conducted in Arrondissement de Rivière-des-Prairies–Pointe-aux-Trembles, our office noticed that the preliminary bill given to the citizen, when his construction permit was issued, did not adequately inform him of the extent of the amounts he could have to take on, regarding the municipal infrastructure work: the preliminary bill only stated the minimum cost of work related to the driveways, an amount likely to be substantially lower than the actual cost to be taken on.

The actual cost of all infrastructure related work was communicated to the citizen only at the end of his project, in a final bill that had to be paid, before the borough would execute this municipal work: this final bill often caused a very bad surprise to the citizen. In the file we handled, the difference between the preliminary bill and the final bill rose to thousands of dollars.

Following our discussions with the borough, the content of the preliminary bill was modified. A new section “Forecast of the actual cost” was added to this bill. The borough now writes, therein, all the work it plans to do as well as a more realistic estimate of their costs. Moreover, the document gives notice that unforeseen costs can occur during the execution of the work and an approximate estimated surplus amount, for such contingencies, is also specified, with a note informing the citizen that: “It is still possible that the actual cost be higher than the said surplus amount indicated.”

These modifications address the concerns we had expressed in regards to the sufficiency of information given to citizens, from the very start.

By quickly and systematically making a more accurate estimate of the costs and by providing this information to the applicant requesting a permit in the preliminary bill, the borough better informs its citizens who as a result, are less likely to have a bad surprise when they receive the Final Bill.

A citizen was complaining about the fact that Ville de Montréal promotional tools for the Rénovation à la carte Subsidy Program lacked clarity and, more specifically, the English version: indeed, the English text referred to a requirement of having “at least six units” in the building, without specifying that these units had to be residential ones.

We inquired with experienced translators and concluded that the English texts, in relation with this program, could be confusing.

Consequently and following our intervention, the Habiter Montréal English Web site was modified and the term “units” has been replaced by the term “dwellings”. As for modifying the information pamphlets, however, their printing costs are quite substantial and, therefore, we have accepted Service de la mise en valeur du territoire et du patrimoine’s undertaking that, as soon as a new print is required, the texts of the pamphlet will be rectified in the same manner.

A citizen who needed a Transformation permit in order to renovate the balconies of her property complained that citizens did not have access to sufficient information on the requirements and standards applied by the borough’s permits office and that these requirements and standards were not clear enough.

Following the analysis of her initial request, a municipal architect had, indeed, informed this citizen that the new balconies she was planning to install could not be approved because they did not recapture the shape and appearance of the existing balconies. As a result, the citizen had to pay additional fees to have her initial project modified before the permit could be granted.

Her property is located in a significant area, as defined in the Règlement d’urbanisme de l’arrondissement Rosemont – Petite-Patrie which contains various rules aiming at preserving the architectural characteristics and patrimonial value of the designated areas as well as of the buildings located therein. Under the said By-Law, therefore, all the elements being replaced on a building located in a significant area must preserve the original shape and appearance of the old ones.

It is fitting to underline that each building located in a significant area may hold architectural characteristics and patrimonial value of its own. Few people, therefore, with the exception of historians and patrimonial architecture specialists, possess the required knowledge to evaluate the architectural and patrimonial value of Plans and Estimates attached to a citizen’s request for a permit. Moreover, it would be almost impossible to specify, in writing, all of the patrimonial aspects likely to be considered, when studying such a request.

Notwithstanding this, the borough undertook to add information on its website on some aspects of the applicable regulations, namely, in regards to architectural integration and implementation plans and to the requirements regarding preservation of the architectural patrimony.

The borough’s website has since been modified accordingly. Although the relevant information cannot be detailed exhaustively, the additional information should enable citizens planning to ask for a Transformation permit to better understand the requirements they will have to satisfy.

A citizen contested the fact that the Home Ownership Program requires that the document confirming the citizen’s Commitment to remain the owner/occupant for at least three years be notarized, which generated unforeseen professional costs for him.

Following our investigation, we have come to the conclusion that this requirement is not unreasonable. Indeed, the fact that the document is notarized helps to ensure the respect of the commitment: if the beneficiary of the subsidy sells his property before the three years period has elapsed, the notary instrumenting the sale would note the existence of this notarized commitment and inform the City representatives accordingly.

We noticed, however, that the information available on Ville de Montréal Web site with regard to this program was not clear in regards to this requirement. Following our intervention, the City modified its Web site to specify clearly the requirement for the purchaser to produce a notarized document for this commitment, at his/her own expense.

A citizen complained to the Ombudsman de Montréal as he was not satisfied with the quality of the “investigation” made by Cour municipale de Montréal, following his not guilty plea. He submitted that, as a result, he had to go to court to submit his evidence once more, which lead to his acquittal from the parking offence he had been charged with.

According to the citizen, the facts were clear and if the “investigation” done by Cour municipale de Montréal had been thorough, he would not have had to waste his time to go to court.

Our investigation revealed, however, that the procedure the citizen was referring to is not an “investigation” in the usual sense of the word, but only a basic administrative verification of the information already in the City’s files. Such verification can lead to a recommendation to pursue or to drop the charge, but not to an acquittal: only the Court has that power.

During the said “verification”, the court’s employees must rely on the information found in the municipal records and they cannot verify whether or not the said information is complete or up-to date; they do not go on site nor do they interrogate any person.

In the present case, the parking prohibition which the citizen had been accused of violating had recently been abolished but, unfortunately, this change had not yet been registered in the City’s records. At the time of the internal “investigation”, therefore, the Cour municipale de Montréal employee could not confirm if the information submitted by the citizen was true, which is why he recommended that the charges be maintained.

The Ombudsman de Montréal made her intervention on the basis of section 16 a) of the Montréal Charter of Rights and Responsibilities in which the City commits to provide citizens useful and clearly formulated information.

She made the Cour municipale de Montréal aware of the confusion caused by use of the word “investigation” in their documents to the defendants. The Cour municipale de Montréal accepted our comments and modified accordingly its documents.

• The title of the documents previously named “Investigation Response” was changed to “Notice to continue proceedings” or “Notice of withdrawal”, as the case may be. Moreover, in the body of the texts, the term “investigation” has been replaced by “administrative verification”.
• In the body of the text, the word “investigation” has been replaced by the expression “administrative verification”.

Thanks to these changes, citizens will no longer be led to believe that Cour municipale de Montréal is conducting a thorough investigation of the explanations they may submit, in support of their plea.