The Situation in the G.T.A.

Currently, the City of Toronto is amalgamating its municipal by-laws with those of the former cities of Etobicoke, York and Toronto. Previously independent entities, these jurisdictions may have zoning regulations that contradict those of the former City of Toronto. Harmonization of such by-laws is still underway (City of Toronto, 2002). An applicant wishing to develop a place of worship would seek a planner and determine whether locations under consideration meet specific criteria. Zoning related to parking, traffic, as well as fire and building code regulations must all be addressed. If the site chosen complies with the abovementioned, there should be no need for litigation. However, municipal planners may approve the site plan and community members may protest. Twenty per cent of the OMB cases were initiated by members of the community opposed to the actions of their elected officials9.

In this situation, despite their compliance with all relevant legislation, congregations may be forced to litigate at the Ontario Municipal Board (OMB), a quasi-judicial tribunal that hears appeals from municipal decisions. Although less formal than court hearings, the OMB places great emphasis on expert opinions (OMB, 2002). Professional planners and lawyers are generally necessary to represent one's interests. Clearly, then, an OMB hearing not only extends the time necessary to develop land but also increases costs substantially.

Description of Research

The author used a variety of case selection criteria in the writing of this paper. A search of all Ontario Municipal Board decisions was conducted on Quicklaw, a legal database. The phrases "place of worship" and "religious land use" were used to locate OMB decisions affecting places of worship. The search took place in February 2002 and includes decisions rendered between 1989 and 2002.

Only those cases that focused primarily, if not exclusively, on places of worship were included. Situations where schools, daycares, residences, etc were more than minor accessory uses, were not included in the cases considered. In addition, only decisions affecting institutions in the Greater Toronto Area (GTA) were carefully examined.

Although other provincial judicial tribunals have discussed issues pertaining to religious land use, this paper reviews only OMB decisions. While this limitation narrows the focus, the nature of the issues raised in the OMB context may mirror those raised elsewhere and subsequently reflect a trend in planning practice.

The Environmental Review Tribunal and the Consolidated Hearings Board, for example, have adjudicated hearings regarding places of worship in contexts similar to the OMB. People of colour and enthnocultural groups have experienced opposition at these tribunals as well.10

"Place of Worship" in Municipal and Provincial Law

There is no definition of "place of worship" in the Planning Act. The Toronto Municipal Code in chapter 415-s.(1), defines the term as, "that part of a building or structure that is exempt from taxation as a place of worship under the Assessment Act as amended or any successor legislation". Other bodies of provincial legislation focus on similar issues. The Assessment Act, section 3(1) states that; "All real property in Ontario is liable to assessment and taxation, subject to the following exemptions from taxation ?Land that is owned by a church or religious organization or leased to it by another church or religious organization and that is a place of worship and the land used in connection with it."

Similarly, the Provincial Land Tax Act, section 3(1) indicates that;"All land situate in territory without municipal organization is liable to assessment and taxation under this Act, subject to the following exemptions from taxation: Every place of worship and land used in connection therewith."

The one piece of provincial legislation governing location related to sacred spaces is found in section 22 of the Theatres Act which indicates that; "The council of a city, town, village or township may pass by-laws prohibiting the construction of a theatre within sixty metres of a church or place of worship." Within the context of provincial legislation, then, the definition of "place of worship" is related more to taxation than to religious observance.

In recent years, neither the Supreme Court nor the Ontario Court of Appeal has rendered decisions involving the establishment, renovation or expansion of a "place of worship."11 It appears that religious institutions in Ontario have not yet referred to the charter in their efforts to secure sacred spaces. Perhaps this has not been necessary. Churches, synagogues, temples and mosques have generally been successful when asserting their rights at the Ontario Municipal Board. Of the twenty cases reviewed for this paper, fourteen, or seventy per cent of the proposed places of worship, were approved at the OMB.