On July 21, 2020, and just prior to the legislature rising for its summer recess, the Provincial government passed the recently introduced COVID-19 Economic Recovery Act (“Bill 197”) which represents a step towards Ontario’s plan for growth, renewal and economic recovery made necessary due to the ongoing pandemic. Bill 197 is an omnibus bill which proposes to amend 20 statutes and was introduced by Premier Ford who described it as necessary to “rebuild the Province and get people back to work”.
Several of the statutes to be amended will be of particular interest to those in the municipal and land development sector and include the Building Code Act, the Planning Act, the Development Charges Act, the Municipal Act, the Ministry of Municipal Affairs and Housing Act, the City of Toronto Act and the Environmental Assessment Act.
A brief summary of some of the Bill 197 highlights is provided below.
Building Code Act
- Provisions of the Building Code Act are amended granting regulation making authority to the Minister of Municipal Affairs and Housing (the “Minister”) and no longer the Lieutenant Governor in Council;
- The Minister may make regulations by adopting documents by reference;
- The intent of these amendments is to streamline parts of the building codes to harmonize them intraprovincially and to enable the Province to respond faster to construction sector needs.
Planning Act
In 2019, the Province, through the passage of the More Homes, More Choice Act (“Bill 108”) and the Plan to Build Ontario Together Act, proposed significant amendments to the Planning Act as it related to community benefits and development charges (“DC”) and its parkland dedication regime. However, these changes were not brought into force. Bill 197 now rolls back many of Bill 108’s would-be changes, for example:
Community Benefits Charges (CBC’s)
- Sections 37 and 37.1 of the Planning Act are repealed and replaced, including the current section 37 agreement process;
- A CBC can not be imposed, amongst others, on development or redevelopment applications that have fewer than five storeys, fewer than 10 residential units, redevelopment that proposes to add fewer than 10 residential units to an existing building or structure, and other developments as are prescribed;
- A CBC can be imposed for public recreational purposes, provided that the capital costs for same are not also being charged pursuant to a development charge by-law under the Development Charges Act e. no double dipping;
- A local municipality can impose a CBC by-law and only one such by-law may be in effect in a municipality at a time;
- A CBC by-law must be subject to public consultation and is appealable to the Local Planning Appeal Tribunal (the “Tribunal”);
- The maximum CBC payable cannot exceed a yet-to-be prescribed percentage of the value of land as of the valuation date, which may be paid under protest;
Parkland Dedication
- The current system by which municipalities obtain parkland (and not the system proposed by Bill 108) will be generally maintained particularly in relation to the alternative parkland rate that applies to higher density residential development;
- Public consultation is required prior to passing a by-law that sets an alternative parkland dedication rate which still cannot be set at a rate greater than one hectare for each 300 dwelling units proposed where land is to be conveyed or one hectare for each 500 dwelling units for payments in lieu;
- An alternative parkland dedication by-law can be appealed to the Tribunal. Limits have also been imposed on the Tribunal’s decision-making powers which make clear that the Tribunal cannot amend the by-law so as to increase the alternative parkland rate or payment in lieu required; and
- Existing parkland dedication by-laws will expire two years after these changes come into force.
Ministerial Powers
- Bill 197 expands Ministerial power as it relates to “specified land”, which is generally defined as land other than land in the Greenbelt Area (which includes areas covered by the Oak Ridges Moraine Conservation Plan, areas covered by the Niagara Escarpment Plan and areas described in the regulations made under the Greenbelt Act, 2005);
- The Minister will have enhanced order-making powers to:
- Confirm that site plan control does not apply to all or part of the specified land;
- Address inclusionary zoning and require the provision of affordable housing;
- Require an owner of land to enter into agreements with a municipality related to, amongst other things, conditions required for the approval of a development project as well as the drawings and plans related to same.
Development Charges Act
Bill 197 expands the list of services for which a DC can be imposed from the list that had been furnished in Bill 108. The expanded list now includes, amongst others:
- By-law enforcement and court services;
- Services related to public health and emergency preparedness;
- Child care and early years programs; and
- Housing services.
Bill 197 rolls back some amendments first proposed by Bill 108 and does not permit the charging of a DC for the acquisition of lands for parks. Double dipping of charges for services as between the Development Charges Act and the Planning Act is not permitted.
The proposed amendments permit services to be included in classes, whereas they were previously grouped into categories. Existing DC by-laws that include certain services can remain in force for up to two years.
Ministry of Municipal Affairs and Housing Act
Bill 197 formally establishes a Provincial Land and Development Facilitator (the “Provincial Facilitator”). The functions of the Provincial Facilitator are to advise and make recommendations to the Minister in respect of land use and other matters, including, but not limited to, Provincial interests.
Municipal Act and the City of Toronto Act
Bill 197 amends the Municipal Act and the City of Toronto Act by repealing existing rules and enabling municipal Clerks and Councils to amend procedural by-laws as they relate to electronic participation. Bill 197 permits members of Council, committees and local boards to participate electronically in meetings which may be open or closed to the public and to be counted for the purpose of determining a quorum. This dispenses with the need to be physically present at a particular venue. In essence, Bill 197 makes the temporary measures implemented to respond to the COVID-19 emergency permanent.
Council members, in accordance with processes established by the municipal Clerk, will be able to appoint a proxy Councillor to act on their behalf during a meeting by voting, questioning or speaking. Specific rules apply with respect to the appointment of a proxy Council member.
Bill 197 also sets out rules relating to the fulfillment of temporary council vacancies under section 267 and 268 of the Municipal Act and prohibits Councillors who have declared a pecuniary interest from appointing a proxy with respect to the item(s) in question.
Concluding Remarks
Many of the Bill 197 amendments referred to above came into force upon Royal Assent, which occurred on July 21, 2020. Certain amendments to the Development Charges Act and Planning Act will not come into force until a date to be identified by proclamation.
The team at Davies Howe would be delighted to answer any questions you may have pertaining to the Bill 197 amendments and how they may affect your current and future development projects.
