News & Posts

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.

The Province has amended the list of essential businesses via O.Reg. 136/20 to now include “construction projects that are due to be completed before October 4, 2020 and that would provide additional capacity in the production, processing, manufacturing or distribution of food, beverages or agricultural products”.

The Province is actively reviewing the list of essential businesses and the team at Davies Howe will continue to provide updates to keep our readers and clients informed.

The Province has amended O.Reg. 73/20, which provides for the suspension of certain limitation periods for the duration of the Declaration of Emergency, via the passage of amending O.Reg. 137/20.

The amendment stipulates that O.Reg. 73/20 does not apply to the Niagara Escarpment Planning and Development Act or the regulations made under it effective retroactively to April 9, 2020, or the Construction Act or the regulations made under it effective April 16, 2020. Therefore, limitation periods or periods of time within which any step must be taken in a proceeding, including an intended proceeding, under these statutes and their regulations continue to operate as per usual.

The Construction Act was likely exempted due to the effects that a suspension of time would have on construction liens and holdbacks, as certain residential construction is allowed to continue during the Emergency as detailed in our previous blog post.

On April 7, 2020, the Province passed regulations that temporarily suspend construction related noise by-laws across Ontario. O.Reg. 130/20 and O.Reg. 131/20 bar municipalities from prohibiting and regulating noise made in connection with:

• Construction projects and services in a municipality associated with the healthcare sector, including new facilities, expansions, renovations and conversion of spaces that could be repurposed for health care space, at any time of the day or night.
• Any other construction activity in a municipality between the hours of 6 a.m. and 10 p.m.

The regulations permit construction noise between 6:00 am and 10:00 pm and are in force effective immediately for a period of 18 months.

The Minister’s new release announcing the above noted that:

This will allow for expedited construction on key facilities, such as new hospital builds, expansions, temporary COVID-19 response units or structures, and COVID-19 assessment centres. Extending hours for essential construction will also give worksite managers more flexibility to stagger shifts, limit the number of people in one place, and take reasonable precautions to keep workers safe and healthy under the recent guidelines issued by Ontario’s Chief Prevention Officer for construction sites.

Ontario is also making essential workplaces across the province safer during the COVID-19 pandemic by:

• Redeploying more than 30 employment standards officers to help businesses understand and comply with health and safety requirements;
• Working with health and safety associations to deploy up to 30 specialists to support employers and workers in the field;
• Issuing health and safety guidance notes to support specific sectors;
• Doubling the capacity of Ontario’s Health and Safety Call Centre from 25 to 50 phonelines;
• Providing job-protected leave under the Employment Standards Act for workers who need to self-isolate or care for a loved one because of COVID-19;
• Issuing a call to recently-retired inspectors who may be able and willing to return to their positions;
• Providing compliance assistance and enforcing the emergency orders issued under the Emergency Measures and Civil Protection Act.

The team at Davies Howe will continue to monitor the rapidly evolving situation as it relates to land use planning and development. We stand ready to answer any questions you may have about how COVID-19 affects the land development industry.

On April 3^rd, 2020, the Government of Ontario reduced the list of businesses qualifying as “essential” and directed non-essential businesses to close by 11:59 pm on April 4, 2020. The closure is in effect for a two-week period that is subject to renewal, but the circumstances are rapidly evolving, and we will continue to monitor the situation.

With regards to the construction industry, only critical construction projects are deemed to be “essential” and therefore allowed to continue. Construction related activities that have been deemed essential are as follows:

• Construction projects and services associated with the healthcare sector, including new facilities, expansions, renovations, and conversion of spaces that could be repurposed for healthcare space
• Construction projects and services required to ensure safe and reliable operations of, or to provide new capacity in, critical provincial infrastructure, including transit, transportation, energy, and justice sectors beyond the day-to-day maintenance
• Critical industrial construction activities required for:
  • the maintenance and operations of petrochemical plants and refineries
  • significant industrial petrochemical projects where preliminary work has already commenced
  • industrial construction and modifications to existing industrial structures limited solely to work necessary for the production, maintenance, and/or enhancement of Personal Protective Equipment, medical devices (such as ventilators), and other identified products directly related to combatting the COVID-19 pandemic
• Residential construction projects where
  • a footing permit has been granted for single family, semi-detached and townhomes
  • an above grade structural permit has been granted for condominiums, mixed use and other buildings, or
  • the project involves renovations to residential properties and construction work was started before April 4, 2020
• Construction and maintenance activities necessary to temporarily close construction sites that have paused or are not active and to ensure ongoing public safety

The Province has indicated that it will continue to perform safety inspections on all sites, and it has hired 60 new safety inspectors to help implement same. As stated above, activities that are necessary to maintain public safety on building sites are permitted and we recommend that developers ensure their sites are safe.

The team at Davies Howe will continue to monitor the rapidly evolving situation as it relates to land use planning and development. We stand ready to answer any questions you may have about how COVID-19 affects the land development industry.

On March 24, 2020, the Local Planning Appeal Tribunal (LPAT) advised that it was cancelling all hearing events scheduled before July 1, 2020 and would not be scheduling any new hearing events, including in-person, written or teleconference hearings, while the Government of Ontario’s Order in Emergency (O.Reg. 73/20) is in effect.

On April 2, 2020, the LPAT announced that it would consider, on a case by case basis, the exercise of its discretion to schedule a hearing event by teleconference or written submission to allow a settlement of the proceeding to be presented to the Tribunal, and is prepared to conduct settlement hearings beginning the week of April 6, 2020.

For parties seeking to present a settlement to the Tribunal, the LPAT has prepared a Settlement Request Form that is to be completed and filed with the Tribunal, together with supporting documents.  However, the LPAT has indicated that it is unlikely that a settlement hearing will be scheduled before a first hearing event, to ensure proper notice to all potential interested stakeholders.

The LPAT has also advised that it will consider lifting the suspension of the Order to enable the Tribunal to conduct other hearing events in writing or by teleconference “in the near future”.

Davies Howe LLP will continue to monitor changes to LPAT’s hearing process and procedures during this time and will provide further updates as circumstances change.

In response to the COVID-19 pandemic, the Provincial Government has made an Order suspending limitation periods and procedural timelines in Ontario. A copy of the Order can be found here.

The suspension is retroactive to March 16, 2020. This means that all limitation periods and procedural timelines – including those applicable to Courts and the Local Planning Appeal Tribunal – were “frozen” on that date. For example, deadlines to commence, serve, and defend claims have stopped running. The suspension will last until Ontario declares an end to the emergency.

Please contact Ava Kanner (ava@davieshowe.com) or John Alati (johna@davieshowe.com)  if you have any questions.

LPAT has issued this letter on March 24 providing its interpretation of Provincial Regulation 73/20 and has indicated that all procedural steps set out in approved procedural orders, as well as any hearings which are scheduled to occur between March 16 and June 30, are suspended.

Contact us if you have any questions.

The crisis that the world is dealing with is unprecedented in our lifetime.  People are worried not only about their health and the health of their loved ones  but about the long term survival of their businesses and the businesses upon which they rely to operate.  When the crisis passes, we expect to be asked by clients whether they are insured for the business losses that they have suffered.  The answer to this question is dependant upon an interpretation of the wording of your commercial insurance policy.

Insurance policies are all different and can be difficult to understand.  There are provisions that detail what is insured and there are exclusions that operate to limit the insurer’s liability.  These provisions must be read together to come to an understanding of whether a business loss is covered.  Generally, these policies provide for coverage when there is a physical loss. For example, there is coverage when the building in which you operate your business burns down and you have loss of property and loss of income.  This example is a clear case for a claim under an insurance policy, although sometimes this too can lead to litigation when there is a dispute over valuation of the loss.

Insurance coverage for the business losses from the COVID-19 pandemic will be more difficult to claim and will require a detailed analysis of the insurance policy covering your business by an expert in the field.  We are experts and can help you with the claim.  We can also shepherd you through the claim process and litigation if necessary.  Our lawyers have a unique and in depth understanding of insurance and the way in which commercial insurers operate.

If you need us, our Litigation lawyers are here to help.