News & Posts

Davies Howe is pleased to welcome the following lawyers to our growing team.

David Fenicky  Click for his bio

Andrew Valela  Click for his bio

Jamie Cole   Click for his Bio

Davies Howe LLP is bidding a very fond farewell and extending its best wishes to its original founding Partner, Jeff Davies, who has recently announced his retirement from the firm, after 28 years.

Jeff will continue to work independently as an Arbitrator, Strategic Advisor and provider of  facilitation services.  Since 2015 and up until announcing his retirement, Jeff has worked with Davies Howe LLP as Counsel on select assignments providing strategic advice.

Everyone at Davies Howe wishes Jeff the utmost future success. We salute Jeff for his visionary leadership and contributions to our Firm and the land development community.

On July 25, 2019,  Alex Lusty successfully represented the Thunder Woman Healing Lodge Society at a Committee of Adjustment Hearing in Scarborough. The Committee approved minor variances that will enable the development of Ontario’s first Healing Lodge for Indigenous women. The Healing Lodge will provide housing along with a variety of holistic and culturally-relevant programs to aid residents in their healing journey.

The Healing Lodge will contain 12 bedroom units for Indigenous women on bail, probation or parole and actively enrolled in programs. There are also 12 apartment units for women who have successfully completed their programs, but still want to work on refining their life skills, overcoming trauma, and regaining their cultural identity. A range of supportive uses are also provided by the Healing Lodge including, commercial space for entrepreneurial residents.

Davies Howe is proud to have been a part of Thunder Woman’s success and thanks Thunder Woman for sharing their exciting vision with us.

Province Opens Commenting on Proposed New Provincial Policy Statement

The Minister of Municipal Affairs and Housing, Steve Clark, announced that the Province is opening consultation on a new version of the Provincial Policy Statement. The announcement comes shortly after Bill 108, The More Homes, More Choice Act, received Royal Assent and before its Regulations have been filed.

The Province is seeking feedback on its proposed policies, which are outlined here. The wording of the proposed Provincial Policy Statement can be found here. The policy changes are intended to:

• Encourage the development of an increased mix and supply of housing, for example, by extending the planning horizon from 20 to 25 years (s. 1.1.2) and permitting the adjustment of settlement area boundaries outside of a municipal comprehensive review where certain criteria contained in s. 1.1.3.9 are met;

• Protect the environment and public safety, which includes, promoting the on-site local reuse of excess soil (3.2.3) and continuing to direct development away from natural and human-made hazards;

• Reduce barriers and costs for development and provide greater predictability, by among other things, requiring municipalities to fast track priority applications that support housing and job-related growth (s. 4.7);

• Support rural, northern and Indigenous communities, for example by including language in the nature of clarification around private communal sewage and water services (1.6.6.3), and introducing new language recognizing the unique role that Indigenous communities have in land use planning (Part IV); and,
• Supporting the economy and job creation, for example by requiring planning authorities to identify strategic sites for investment and address potential barriers to investment (s. 1.3.1(c)) while introducing new language designed to strengthen the separation of sensitive and industrial uses (1.3.2.3).

For now, consultation appears to be limited to the submission of written comments. Written comments can be sent in: via e-mail, through the Environmental Registry or by regular mail. Comments are being received until October 21, 2019.

Davies Howe has prepared this Unofficial Comparison of the changes between the PPS, 2014 and the proposed New Provincial Policy Statement to be used for educational purposes only. The Unofficial Comparison should not be relied upon for legal purposes.

Today, Bill 108, More Homes, More Choice Act, 2019 passed third Reading and received Royal Assent.  Parts of the Bill are now in force while others await proclamation.   The final Bill can be accessed here:  https://www.ola.org/en/legislative-business/bills/parliament-42/session-1/bill-108.

For specific advise on how Bill 108 applies to you, please contact one of our Land Development Lawyers.

On Tuesday, May 28 the government’s time-allocation motion for Bill 108 passed after question period.  The motion will require Bill 108, which makes sweeping changes to planning and development regulations, to be sent back to the House for third reading debate by next Tuesday, June 4th.

Guide to Changes to the Development Charges Act, 1997

This summary highlights some of the key changes to the Development Charges Act, 1997 as outlined in Schedule 3 of Bill 108. A stated goal of the Provincial Government in introducing these proposed changes is to make housing more affordable and increase the housing supply by lowering and providing certainty about municipal costs and development charges imposed on construction. There is also consideration to providing developers of cost sensitive projects, such as rental and non-profit housing, with an increased certainty of costs and relief with respect to timing of payment of development charges.

Three of the central proposed changes revolve around

• The types of services to be included in development charges
• The timing for payment of development charges for certain types of development, and
• The timing for when the amount of a development charge is determined.

Selected Key Changes

Eligible Service

• A significant change proposed is the repeal of subsection 2(4) of the Act which specified, through regulation, services which were ineligible for development charges. If a service was not enumerated, a municipality could impose a development charge.
• A new subsection 2(4) is proposed which instead specifically enumerates those services for which a development charge can be imposed. If a service is not in this list, no development charge can be charged for it. Soft services for which development charges were traditionally imposed by municipalities, like recreation, library, paramedics and general government, are not enumerated, and therefore, unless prescribed under regulation, will no longer be subject to development charges. However, these services may ultimately be included in the new Community Benefit By-law contemplated under the Planning Act

Elimination of 10% Reduction

• The Bill proposes the elimination of the 10% reduction generally applied to the capital costs of soft services. This 10% reduction is no longer available for waste diversion services for which development charges continue to be exigible.

When a development charge is payable

• The Bill introduces a scheme to defer the payment of development charges for rental housing development, institutional development, industrial development, commercial development, and non-profit housing development until the earlier of the date of the issuance of a permit under the Building Code Act, 1992 authorizing occupation of the building, and the date the building is first occupied where no occupancy permit is required.
• The charge would be payable in six equal annual instalments. Interest may be payable in respect of these payments at a prescribed rate.
• A related amendment is made to Section 52 of the Act applicable to the forgoing types of development which provides that the obligations for payment by a non-party of development charges pursuant to a front-ending agreement are subject to the same rules regarding timing of payment and other obligation in section 26.1.

When the amount of a development charge is determined

• Another key change relates to when a development charge is determined if an early or late payment agreement is not entered into.
• The new proposed section provides for development charge rates to be frozen at an earlier point in time (subject to the payment of interest) including, for example, when an application is made for site plan approval under section 41 of the Planning Act.
• If site plan control does not apply to an application, the relevant date for freezing of the rate payable is the date of an application for an amendment to a zoning by-law under section 34 of the Planning Act.
• If both applications are made for a development, the relevant date is the later of the two applications.
• These sections apply only to applications made after Bill 108 is enacted.

Second Units

• In an effort to encourage the development of additional units in existing structures, new provisions are introduced which would exempt development charges for additional units in certain prescribed existing residential buildings or ancillary structures to existing homes, in the creation of a second dwelling unit in certain new buildings and ancillary structures and the conversion of communal areas to residential units in rental buildings.
• The classification of residential buildings and structures, along with relevant restrictions to this application, will be prescribed in regulation.

Transitional Matters for Development Charges for Soft Services

• A development charge by-law that would expire on or after May 2, 2019 but before a date to be prescribed in regulations will remain in force in relation to soft services generally (all services not set out in section 5(5) as is currently in force) until the earlier of:
  • the day the by-law is repealed,
  • the day a Community Benefits By-law is enacted, and
  • a prescribed date.
• For by-laws which are currently in effect governing soft services, the Act contains provisions requiring that the by-law will be deemed expired in relation to the soft services, on the earlier of the passage of a Community Benefits By-law, and a prescribed date.
• Until such time, the existing development charge by-law continues to apply to development charges which will no longer permitted to be charged under the new legislation.

The changes proposed to the Development Charges Act, 1997 must be reviewed alongside the changes to the Planning Act introduced in Bill 108, and in particular, those provisions relating to the proposed new community benefits authority and the treatment of development charges for discounted soft services. These are described more fully in our guide the changes to the Planning Act.

It is noted that the Province is accommodating further consultation on the proposed changes to the Development Charges Act, 1997, and feedback may be submitted through the Environmental Registry of Ontario, between May 2^nd 2019 and June 1^st 2019.

A more detailed summary of the key changes is found below:

Please check our 2019 Planning Reform page and other blog posts for more details on Bill 108.

Guide to Changes to the Education Act

­This summary highlights the key changes to the Education Act as proposed by Schedule 4 of Bill 108. An explicit aim as set out in the preamble of the Bill is to allow school boards and development partners to find innovative ways to finance new schools. Two new mechanisms of particular significance are introduced by the Bill and outlined below.

Selected Key Changes

Alternative Projects

• A key change proposed involves the introduction of provisions allowing a school board to request the allocation of revenue from education development charge by-laws for alternative projects. These are projects that would encourage pupil accommodation and reduce the cost of acquiring land. The Board must make this request before an education development charge by-law is passed.
• The Minister must approve of this request and a school board would be required to provide detailed plans and continual updated information surrounding the project.
• This section would come into force on the later of November 1, 2019 and the day the More Homes, More Choice Act, 2019 receives Royal Assent.

Localized Education Development Agreements

• Another notable introduction is that of a localized education development agreement between a school board and land owner. In exchange for providing a school board with real property, a lease, or other benefit to be used to provide pupil accommodation, a school board would agree not impose education development charges against land that would otherwise be subject to the charge. This agreement must be entered into before an education development charge by-law is passed.
• This arrangement would require the consideration and approval of the Minister and may be subject to prescribed criteria.
• These proposed changes to the Education Act are scheduled to come into force on the later of November 1, 2019 and the day the More Homes, More Choice Act, 2019 receives Royal Assent.

Acquisition, Leasing or expropriation of Land

• A Board’s power to acquire, lease or expropriate land has been extended from a right to purchase, lease or acquire a school site to include any other land that is within its area of jurisdiction pursuant to amendments to section 195 of the Education Act.
• The Schedule also introduces a requirement in section 195 for a school board to provide the Minister with notice of intent to acquire or expropriate land. The Minister would have the authority to reject a school board’s plans.
• These proposed changes to the Education Act are scheduled to come into force on the day the More Homes, More Choice Act, 2019 receives Royal Assent.

A more detailed summary of the key changes is found below:

Sections 195 and 257.70(2) shall come into force on the day the More Homes, More Choice Act, 2019 receives Royal Assent. The balance of the sections shall come into force on the later of November 1, 2019 and the day the More Homes, More Choice Act, 2019 receives Royal Assent.

Please check our 2019 Planning Reform page and other blog posts for more details on Bill 108.

Guide to Changes to Conservation and Environmental Protections and Assessments

 The following is an outline of the key changes that are proposed to four environment-related statutes, which aims to highlight the main changes that will affect the land use planning process.

Note that the Conservation Authorities Act and Endangered Species Act, 2007 are proposed to fall under the purview of the Minister of the Environment, Conservation and Parks, moved from the Minister of Natural Resources and Forestry.

Endangered Species Act, 2007

1. Creation of the Species at Risk Conservation Fund and a Crown Agency to administer the Fund.

• The Minister of the Environment, Conservation and Parks may designate species listed on the Species at Risk in Ontario List as “conservation fund species”. The purpose of the Fund is to provide funding for activities that are “reasonably likely to protect or recover conservation fund species or support their protection or recovery.”

• Payments out of the Fund may be made to a person who wishes to carry out an activity that is consistent with the purpose of the Fund and is reasonably likely to contribute to reversing the decline, abating, or increasing the population or distribution of a conservation fund species. The criteria for Fund recipients will be elaborated in the regulations and guidelines to be written by the Ministry.

• The amount of the species conservation charge, which is a charge payable to the Agency for the purpose of carrying out the objectives of the Fund, shall be prescribed by the regulations.

2. Activities that damage or cause destruction to a habitat may be authorized and mitigated through a Landscape Agreement

• A new concept of “Landscape Agreements” is introduced to authorize activities that would otherwise be prohibited under ss. 9 and 10, including activities that would damage or destroy the habitat of a species at risk.

 Landscape Agreements are between the proponent and Minister, which the Minister may enter into, as long as the criteria in the Act are met.

 Among other criteria, the Landscape Agreement must identify “beneficial actions” that the authorized party will undertake to assist with the protection or recovery one or more species contained in the agreement (the “benefiting species”). 

• The benefiting species is not required to be the impacted species in the agreement. However, other criteria include that at least one of the benefiting species must be an impacted species and the beneficial actions must outweigh the adverse effects on the impacted species, among others. 

• The Landscape Agreement may require that the authorized party pay a species conservation charge if the impacted species is a conservation fund species.

3. The permit regime has not changed substantially

• The amendments revise some of the criteria that the Minister must consider before issuing a permit, which mainly provide for the condition of paying a species conservation charge.

• The main difference between the permit regime and Landscape Agreements is that the latter is not subject to certain criteria, such as whether the activity is necessary to protect human health and safety or whether the activity will result in significant social or economic benefit to Ontario. Nevertheless, further criteria for Landscape Agreements may be introduced by regulations.

• Further, Landscape Agreements introduce a new concept of evaluating the benefits to the beneficial species against adverse effects on the impacted species, which is not a feature in the permit regime.

4. The Minister may take more time to consider or reconsider a recommendation by the Committee on the Status of Species at Risk in Ontario (“COSSARO”).

• When considering whether to list a species as endangered or threatened, COSSARO must consider the condition of the species outside Ontario. If the species is experiencing low level risk to survival when considering the wider geographic range, this shall be reflected in how the species is classified.

• The Minister will have flexibility to reconsider the committee’s recommendations to the Species at Risk in Ontario List and the Minister is proposed to have 12 months’ time to add said species to the regulations.

• For new species, the Minister may temporarily suspend some or all of the prohibitions associated with protecting said species for up to 3 years. 

Most of the proposed changes to the Endangered Species Act, 2007 are proposed to come into force on July 1, 2019.

Conservation Authorities Act 

1. Narrowing of the programs that Conservation Authorities may administer.

• A Conservation Authority shall provide a program or service contained in the regulations and that relates to the risk of natural hazards, the conservation and management of lands owned or operated by the authority, and the authority’s duties, functions and responsibilities under the Clean Water Act, 2006 or otherwise prescribed in the regulations.

• The Conservation Authority may provide programs and services that it determines are advisable to further its objectives; however, financing said programs is restricted based on the proposed amendments.

2. Conservation Authorities may be investigated.

• The Minister may appoint one or more investigators to conduct an investigation of an authority’s operations, including the programs and services it provides. The investigator may require the production of records, conduct a financial audit, and require a member of an authority to give evidence under oath, among others.

These amendments are proposed to come into force on a day to be named by proclamation.

Environmental Protection Act

1. Expanded regime for administrative penalties.

• The scope of contraventions that may be subject to an administrative penalty is widened to effectively include the contravention of any provision of the Act or its regulations, which would not otherwise be subject to an environmental penalty.

• The maximum monetary amount for an administrative penalty is increased to $200,000 (from $100,000) for each contravention.

These amendments are proposed to come into force on a day to be named by proclamation.

Environmental Assessment Act 

1. Class environmental assessments exemptions.

• A class environmental assessment may provide that this Act does not apply with respect to one or more undertakings within the class. Further, there are specific exemptions when certain criteria are met for the enumerated class environmental assessments provided in the Act.

• The Minister may amend an approved class environmental assessment.

• Where the Minister or the Tribunal reconsiders an approval of a proponent’s class environmental assessment, that approval may be amended or revoked

2. Limits on when the Minister may issue an order under Part II of the

• The Minister may only issue an order on the grounds that it will prevent, mitigate or remedy adverse impacts on existing aboriginal and treaty rights or a prescribed matter of provincial importance, and the Minister must do so within the prescribed deadlines.

The majority of these amendments are proposed to come into force on a day the More Homes, More Choices Act, 2019 receives royal assent, and the remaining provisions will come into force on a day to be named by proclamation.

Please check our 2019 Planning Reform page and other blog posts for more details on Bill 108.

Ontario Regulation 988/19 was filed on May 2, 2019. It amends various definitions in the Ontario Building Code as well as sections of Division B.

Please find our guide to the important changes here .

If you have any questions regarding the Ontario Building Code, please contact one of our municipal, planning and land development lawyers.