News & Posts

On June 16, 2020, the Province posted two proposals on the Environmental Registry of Ontario (the “ERO”) related to its proposed changes to the Growth Plan. The proposal for the proposed amendments to the Growth Plan is found here and the proposal for the proposed Land Needs Assessment Methodology (the “Methodology”) is found here.

The proposed changes, which are currently open for public comment until July 31, 2020, include updates and policy changes to the population and employment forecasts, a change to the Growth Plan horizon year, adjustments to the aggregates policy framework, new policies to address Major Transit Station Areas (“MTSAs”) within Provincially Significant Employment Zones (“PSEZs”), and other policy revisions to support an increase in housing supply, create more jobs, attract business investment, and better align infrastructure.

A link to the proposed amendments and background materials can be found here.

Proposed Amendments to the Growth Plan

The proposed amendments extend population and employment forecasts to 2051, from 2041 currently, to ensure municipalities have sufficient land to support the creation of complete communities. The amendments specify that that municipalities must use the forecasts in the Growth Plan, found in Schedule 3, or higher forecasts determined through a Municipal Comprehensive Review (“MCR”) process with a conformity deadline of July 2022.

Further, the proposed amendments address Provincial objectives related to intensification surrounding MTSAs and would allow conversions of employment areas to non-employment areas within a PSEZ outside of an MCR that is located within an MTSA in order to allow for mixed-use developments to be approved more quickly. The amendments also outline the next steps to be taken in evolving PSEZ policies and how these areas can be used to support the post-COVID economic recovery, attract investment, and support the retention and expansion of manufacturing activity.

With regard to transition, it is contemplated that any Local Planning Appeal Tribunal matter where a hearing has been completed but a decision has yet to be issued would remain subject to the Growth Plan as it read prior these amendments but that all other matters would be required to conform to the Growth Plan as proposed to be amended.

Proposed Land Needs Assessment Methodology

Every municipality in the Greater Golden Horseshoe, as part of an MCR, must utilize the Methodology to assess the quantity of land required to accommodate forecasted growth. The proposed Methodology offers a simplified approach that will be forward looking and account for demographics, employment trends, market demand, and housing affordability.  The Methodology emphasizes that municipalities must have enough land with servicing capacity to provide at least a three-year supply of residential units, and that they must plan to maintain the ability to accommodate residential growth for at least 15 years, consistent with the 2020 Provincial Policy Statement.

The Methodology contains a Community Land Area Land Needs Assessment used for housing, population-related jobs and office jobs and an Employment Area Land Need Assessment for all various types of employment.

When planning for community areas, municipalities must:

• Use the population and employment forecasts contained in Schedule 3 for planning and managing growth, as a minimum;
• Direct development to settlement areas, except where the policies permit otherwise;
• Plan to achieve minimum intensification and designated greenfield area density targets;
• Support the achievement of complete communities that offer and support opportunities for people of all ages and abilities to conveniently access most of the necessities for daily living, including an appropriate mix of jobs, local stores, and services, a full range of housing, transportation options and public service facilities;
• Consider the range and mix of housing options and densities of the existing housing stock and plan to diversify housing options in the future, including additional residential units and affordable housing, to serve all sizes, incomes and ages of households; and
• Plan for a more compact built form that reduces the rate at which land is consumed and supports the integration and sustained viability of transit services.

When planning for employment, municipalities must:

• Within settlement areas, make more efficient use of existing employment areas, vacant and underutilized employment lands, and increase employment densities;
• Direct major office and appropriate institutional development to urban growth centres, major transit station areas and other strategic growth areas with existing or planned frequent transit service;
• Direct retail and office uses to locations that support active transportation and have existing or planned transit;
• Prohibit or establish a size and scale threshold to prohibit any major retail exceeding this threshold in employment areas; and
• Provide for economic activity on rural lands that is appropriate in scale and type to the rural context.

The team at Davies Howe would be delighted to answer any questions you may have pertaining to the proposed amendments to the Growth Plan and how it may affect your current and future development projects.

The Minister of Municipal Affairs and Housing (the “Minister”) has announced that he intends to end the temporary suspension of Planning Act timelines implemented through O.Reg. 149/20 on June 22, 2020. Please click here for a copy of the communication from the Minister.

We will provide an update when the Minister issues more details on how the suspension will be lifted and how timelines will resume.

The Divisional Court, in a February 25, 2020 decision stemming from an appeal of a decision of the Local Planning Appeal Tribunal (the “LPAT”), largely upheld the LPAT’s decision to award disturbance damages for lost real estate commissions and costs associated with a loan in an expropriation matter.

The circumstances of the case are that the City of Toronto expropriated a number of adjacent properties owned by the appellants in 2014, the valuation of which was appealed to the LPAT. The appellants had previously submitted a development application seeking a 14 storey residential building that had not yet been approved. The City had initially offered the appellants $9,000,000, which was further revised to $14,000,000 before the hearing and $17,000,000 at the hearing, although only $9,000,000 was paid to the appellants prior to the expropriation proceedings.

The LPAT, in addition to valuing the property at $18,000,000 – double the amount the City initially offered – awarded damages to the landowner incurred as a result of delay by the City in the form of interest on the $9,000,000 that remained outstanding as the proceedings occurred. The LPAT’s decision was largely upheld in a positive development for those seeking damage awards in expropriation matters.

In summation, the Divisional Court found that:

• There was no error in the LPAT’s valuation of the property at $18,000,000;
  • The LPAT determined this value based upon the “direct comparison approach”, which utilizes comparable property sales in the vicinity of the expropriated lands to arrive at a valuation, as opposed to the more rarely used “residual approach”, which values the proposed development as if it were complete and subtracting the costs of construction.
  • The LPAT rejected the appellants argument that the residual approach should be used, stating that it was only appropriate where development was imminent, which was not the case as there were further steps in the planning process that had to be taken before being “shovel ready”.
• There was no error in the LPAT’s finding that the City of Toronto caused delay in expropriating the property and should pay 12% interest on the outstanding expropriation amount;
  • The main factor in this aspect of the decision was that the City had only paid $9,000,000 to the appellants despite revising their valuation to $14,000,000 prior to the hearing and $17,000,000 during the hearing.
  • The LPAT determined that the start date for interest accrual would be the date on which the City paid the $9,000,000 to the appellants.
• There was no error in the LPAT’s decision to award disturbance damages for the Appellant’s lost commissions but to not award disturbance damages for the Appellant’s lost business opportunities;
  • The LPAT awarded $2,100,000 in lost real estate commissions to the appellants, which they would have received for pre-construction sales if the properties had not been expropriated, because this loss was directly tied to the expropriation.
• There was no error in the LPAT’s decision not to award disturbance damages for the cost of purchasing alternative properties
  • The appellants argued that they should receive disturbance damages for the cost of buying a replacement property, which they claimed would include the land transfer tax and legal fees associated with the purchase.
  • The Divisional Court agreed that this claim should be dismissed because the appellants had not yet purchased or made arrangements to purchase an alternative property.

This decision furthers the ability for landowners to receive damage awards in expropriation cases and largely exalted the LPAT’s decision-making in a high stakes expropriation case.

Our team at Davies Howe is at the forefront of expropriation matters in Ontario and would be happy to assist you in receiving fair treatment during an expropriation proceeding.

If you have any expropriation related questions, please contact Ava Kanner (416) 263-4503.

On June 5, 2020, the Province amended O.Reg. 73/20, passed under section 7.1 of the Emergency Management and Civil Protection Act (the “EMCPA”), which provides for the suspension of limitation and time periods in proceedings.

The amendments, made via O.Reg. 258/20 and O.Reg. 259/20 , separate the duration of the suspension from the length of the Declaration of Emergency, allowing for the duration of O.Reg. 73/20 to apply outside of the current Declaration of Emergency.  Further, the amendments extend the suspension of time periods and limitation periods until September 11, 2020, which is the maximum renewal period allowed under the EMCPA.

The changes also clarify who may exercise the discretion to vary time or limitation periods available to Courts and Tribunals to include:

• The person or persons who have jurisdiction to make orders in the proceeding;
• The Chief Justice of Ontario, in respect of any or all of the proceedings before the Court of Appeal for Ontario;
• The Chief Justice of the Superior Court of justice, in respect of any or all of the proceedings before the Superior Court of justice;
• The Chief Justice of the Ontario Court of justice, in respect of any or all of the proceedings before the Ontario Court of Justice; or
• The chair of a tribunal, in respect of any or all of the proceedings before the tribunal.

On May 14, 2020, the Province announced that it would be removing the essential workplace limits on construction effective May 19, 2020. As a result, all residential and non-residential construction can resume and new renovations can start, with the caveat that all sites should meet or exceed the Ministry of Labour’s Guidelines for Construction Site Health and Safety during COVID-19.

The team at Davies Howe would be happy to discuss how the evolving COVID-19 landscape affects your business and construction activities.

On May 11, the Ministry of Municipal Affairs and Housing filed O.Reg. 209/20, which amends Ontario’s Building Code to require that municipal building staff continue to review permit applications and conduct construction inspections despite the COVID-19 Emergency. Additionally, the amendments provide for the issuance of conditional building permits for non-essential construction during the COVID-19 Emergency. However, O.Reg. 209/20 does not permit construction to occur if it is not deemed “essential” and therefore permitted by O.Reg. 82/20, it simply provides for the issuance of the permit.

In the City of Toronto, building permitting and inspection services are being offered and new building permit applications are being accepted electronically. The Committee of Adjustment has also scheduled its first hearing to occur on June 3 and notices will start being sent to applicants next week, with less complex cases being given priority.

Please click here for an update from the City of Toronto on what planning and development services are currently available.

The Province extended the Declaration of Emergency until June 2, 2020 while slowly beginning to roll out Phase 1 of its reopening plan. Click here to see the announcement. Premier Ford mentioned that more details of the Stage 1 reopening would be forthcoming on May 14, 2020.

On May 6, 2020, the Province announced that it would be extending many emergency orders-in-council to May 19, 2020 while easing restrictions on some retail stores and essential construction work. The Province’s announcements can be found here and here. Further, the Province is expected to renew the Declaration of Emergency when the Legislature meets on May 12, 2020.

Any resumption in business or construction activity must occur in accordance with Provincial safety guidelines such as promoting physical distancing and frequent handwashing, sanitizing surfaces, installing physical barriers, staggering shifts, and using contactless payment options.

Essential construction will be expanded to include below-grade multi-unit residential construction for apartments and condominiums and continuing existing above-grade projects – we will provide an update when the list of essential businesses pursuant to O.Reg. 82/20 is revised.

Garden centres and nurseries can open for in-store payment and purchasing on May 8, 2020

Hardware stores and safety supply stores can open for in-store payment and purchasing on May 9, 2020

 Retail stores with a street entrance can begin offering curbside pickup and delivery on May 11, 2020

The Ministry of Heritage, Sport, Tourism, and Culture Industries has announced that public consultation on the proposed regulations to support the amendments to the Ontario Heritage Act made under  Bill 108: More Homes, More Choice Act, 2019 has been postponed due to the COVID-19 Emergency. The Ministry is now targeting January 1, 2021 as the date for proclamation of the amendments. Please see the communication from the Ministry by clicking here..

BILD and OHBA Submissions on Proposed Community Benefits Charge (“CBC”) Authority

On April 20, 2020, BILD and OHBA submitted comment letters in response to the proposed Community Benefits Charge regulations.

BILD Submission

BILD’s submission is supportive of the Province’s desire to introduce a new methodology for calculating development fees. The comment letter provides recommendations that would help to ensure that such fees are reasonably and fairly applied across all development types and densities and do not exceed the actual increases in municipal expenditures arising from development. Further, BILD’s recommendations aim to improve the transparency and predictability of development fees. The key points in BILD’s submission, as detailed in the executive summary, can be summarized as follows:

• A one size-fits all approach should be avoided – different development types and densities should be treated differently
• The calculation of CBC’s should be based on the same prescribed methodology as it applies to the calculation of development charges and all of the required calculations should be detailed in the CBC strategy
• An appeal to the LPAT should be available to resolve disputes on the valuation of land
• Where existing agreements are in place, transition provisions should stipulate that the CBC would not apply
  • Further, a transition regulation should be included that directs parkland contribution obligations to be determined in accordance with Master Parkland Agreements that are entered into before a CBC by-law is adopted
  • This regulation should allow for future Master Parkland Agreements to be entered into by municipalities after a municipality adopts a CBC by-law, with appropriate credits/adjustments to the CBC payable within the applicable area, as determined with the municipality
• The Province should add items to the list of eligible services to be funded through development fees in order to maintain certain municipal revenues; such a list would not include public realm/civic improvements, affordable housing and long-term care
• The Province should limit the CBC to a maximum of 10% of the land value, that it should only apply to single and lower-tier municipalities, and should be based on a study that is appealable
• Park needs justification studies should be expressly required to assess whether parkland funded by the CBC would result in an increase in the average amount of parkland per resident within the municipality for parks of various categories (local, community or district).
• Rules pertaining to the calculation of CBC’s should prohibit CBC funding increases in parkland service levels or parkland that benefits existing development being funded by the CBC
• CBC’s should apply only to new residential development with a net residential development density of over 100 residential units per hectare, with development at lower densities subject to the parkland dedication at the 5% rate
  • Mid-rise developments should also be exempt from the CBC and be subject to parkland dedication at the base rates in the Planning Act as amended by Bill 108
• For high-rise projects, the value of the CBC should be determined well before a project goes to market for sale, and that this occur during the Municipal Comprehensive Review or Official Plan stage of development
  • For site-specific developments and where master plan communities are intended, land values could be determined at the time of a Zoning By-law Amendment application or Site Plan application stage
• Non-residential developments should be subject to a CBC of 2% of land value, which is consistent with current parkland dedication/cash-in-lieu rates per the Planning Act as amended by Bill 108
• Adaptive-reuse development or renovation projects should be explicitly exempt from the CBC

OHBA Submission

The OHBA’s submission also contains very specific and detailed recommendations, the most significant of which are as follows:

• The CBC framework should not apply to low and mid-rise housing below a density threshold of 100 units per net hectare, with development at lower densities subject to parkland dedication at the 5% rate
• The CBC should be limited to high-rise projects that have a density threshold equal and greater than 100 units per net hectare and be utilized for community benefits (including parkland) up to a maximum of 10% of land value
• The appraisal/valuation date for a CBC should be moved earlier in the planning process
• The regulations must include a robust and fair ineligible services list
• Service standards must be applied for municipal implementation of CBC by-laws

The team at Davies Howe would be delighted to answer any questions you may have pertaining to the proposed CBC framework and how it may affect your current and future development projects.

On April 14, 2020, the Province passed Bill 189: Coronavirus (COVID-19) Support and Protection Act, 2020 (“Bill 189”)

Bill 189 received Royal Assent and came into force and effect on April 14, 2020. It amends the following pieces of legislation relevant to planning and development:

• Planning Act
• Development Charges Act, 1997
• Education Act

 Planning Act

Bill 189 allows the Minister of Municipal Affairs and Housing to make regulations governing the application of time periods under the Planning Act during the period of the emergency declared by the Province.

Pursuant to the new powers granted by Bill 189, O.Reg. 149/20 was filed on April 15, 2020 and contains the details about changes to notice provisions and time periods.

On April 21, 2020 the Province provided additional clarification on O.Reg. 149/20 via a posting on the Environmental Registry of Ontario, which can be accessed here.

O.Reg. 149/20

O.Reg 149/20 specifies that O.Reg. 73/20, which provides for the general suspension of limitation periods and the periods of time during which any step must be taken during a proceeding, and any other order made under s. 7.1(2) of the Emergency Management and Civil Protection Act made after April 15, 2020, do not apply to the Planning Act, its regulations, or s. 114 of the City of Toronto Act, 2006 (site plan applications in the City of Toronto).

Notice

Decision notices for most Planning Act instruments, including Official Plans and Official Plan Amendments, Zoning By-laws and Zoning By-law Amendments, Plans of Subdivision, Consents, and Community Planning Permits, given on or after February 26, 2020 and before April 15, 2020 are deemed not to have been completed. Any such decision notices and decision notices not yet sent out for decisions made on or after March 2, 2020 and before April 15, 2020 must be given no later than 15 days after the Declaration of Emergency is terminated or disallowed.

Please see s. 4(3) of O.Reg. 149/20 for a full list of Planning Act provisions affected by these new notice requirements.

Decision notices with respect to Minor Variance applications that were made on or after February 26, 2020 and before April 15, 2020 must be given no later than ten days after the Declaration of Emergency is terminated or disallowed irrespective of whether notice has already been effected. The 20-day appeal period in s. 45(12) of the Planning Act is expanded to be 20 days after receiving (or re-receiving) the notice.

Application of Periods of Time

O.Reg. 149/20 also suspends certain Planning Act and City of Toronto Act, 2006 timelines for decision making and the filing of appeals for Official Plans and Official Plan Amendments, Zoning By-laws and Zoning By-law Amendments, Subdivisions, Site Plans, Minor Variance and Consents, among other matters listed in s. 5(1) of O.Reg. 149/20.

Any timelines that did not end prior to March 17, 2020 are suspended until the Declaration of Emergency is terminated or disallowed.

If certain appeals were filed on or after March 17, 2020 and before April 15, 2020, they are deemed to have not been filed. Please see s. 5(2)(2) for a full list of Planning Act and City of Toronto Act, 2006 appeals affected by this provision.

Interim Control By-laws (“ICBL”)

O.Reg. 149/20 pauses the expiry of ICBL’s that were in effect on March 17, 2020 and had not been repealed prior to April 15, 2020. The expiry date of such ICBL’s has been extended by the number of days between March 17, 2020 and the date the Declaration of Emergency is terminated or disallowed. Similarly, if an ICBL was in effect on March 17, 2020 and does not expire before the Declaration of Emergency terminates or is disallowed, the by-law is deemed to remain in effect after the day it would otherwise expire for a period equal to the number of days between March 17, 2020 and the day the Declaration of Emergency is terminated or is disallowed.

Of note – O.Reg. 149/20 states that its provisions do not limit the ability of a municipality to amend or repeal an ICBL.

Development Charges Act, 1997

All Development Charge By-laws (“DC By-laws”) that expire between March 17, 2020 and a date to be determined that is six months from the date that the Declaration of Emergency is terminated or disallowed (the “Specified Date”) shall remain in force until the earlier of the Specified Date and the day the DC By-law is repealed.

Education Act

The changes to the Education Act are similar to those made to the Development Charges Act, 1997 as it relates to Education Development Charge By-laws (“EDC By-laws”) in that all EDC By-laws that expire between March 17, 2020 and the Specified Date shall remain in force until the earlier of the Specified Date and the day the EDC By-law is repealed.

These changes also state that an EDC By-law that remains in force through operation of Bill 189 cannot be amended to provide for rates that are higher than those set out in the EDC By-law on the day it would have expired.