News

In its meeting on July 14^th, Toronto City Council (the “City”) adopted (with amendments) item PH25.17: Toronto Green Standard (TGS) Review and Update. This directs staff to apply version 4 of the TGS standards (the “Standards”) to new development applications starting May 1^st, 2022. Buildings are responsible for 59 per cent of Toronto’s carbon emissions, and while the Standards have been hailed by City councillors as helping to combat climate change and biodiversity collapse, some in the development industry question whether the Standards are compounding the cost of housing and Toronto’s affordability crisis.

The Standards are based on three tiers of increasingly sustainable performance. All developments, including those through the City’s Housing Now initiative must conform at least to Tier 1 standards. Builders who construct at higher tiers are eligible for an incentive under the City’s Toronto Green Standard Development Charge Refund Program.

Tier 1 standards will soon require all new developments to accommodate electric vehicles in 25% of parking spaces (up from 20% currently). Some large-scale Tier 2 and 3 developments will require 100% electric vehicle parking. Near-zero greenhouse gas emissions will be required by 2030 for all mid-high rise residential and non-residential buildings. Furthermore, new developments will also be required to better capture and control stormwater runoff. This control will occur through better street design, green roof coverage of at least 80%, and landscaping 25% of the lot area with native flowering/pollinator species.

Tier 2 and 3 standards, in addition to the above, will require developers to conduct a materials emissions assessment of the embodied carbon of structural and envelope components. This means carbon, not just from construction but from any previous buildings on site, will require calculation and potential sequestration through onsite green infrastructure provision and landscape design. This might suggest a shift away from concrete building structures in the long term, as such structures are highly carbon intensive.

One thing the Standards do not address is the prevalence of natural gas within the City’s existing housing stock, which accounts for much of the emissions from residential buildings, primarily to heat space and water.

Lastly, Council passed a motion to study potentially enacting by-laws for all multi-residential buildings, irrespective of tenure, to enable its transition towards a “circular economy”. This would include mandating various waste reduction, reuse and diversion programs beyond compost and recycling, and diverting from landfill as much construction and demolition material as possible during construction, redevelopment, and renovations.

Something Old, Something New

To an extent, the Standards adopted by Council are familiar because the themes addressed have been an ongoing discussion in the City, and across the world. The proposed demolition of the Rogers Centre last year left some questioning whether embedded carbon costs could be adequately captured in the development review process. The expansion of green roofs and pollinator gardens goes hand in hand with last week’s Council decision to re-balance stormwater utility rates to encourage more surface permeability. Various other global cities have adopted circular economy strategies, including Amsterdam, London,  Paris, Copenhagen, and more, with the ultimate aim of such strategies to produce no waste and pollution, by design. Lastly, the recent tornado in the City of Barrie, has prompted further calls for climate resistant buildings.

Compounding Costs

Toronto’s Building Industry and Land Development Association (“BILD”) has raised concerns that the Standards could increase costs for the development industry, which would ultimately get pushed onto buyers and renters of new housing. Specific concerns raised by BILD include whether the electrical grid has enough capacity to accommodate an influx of new electric vehicles, and the maintenance costs for green roofs and pollinator gardens. BILD also questioned whether a Province-wide green standard would make more sense, to avoid pushing development outside of Toronto and into other areas in the region. Lastly, BILD questioned whether these new Standards, in addition to new Inclusionary Zoning, would make some developments simply unfeasible.

Next Steps

The Standards will come into effect on May 1^st, 2022, giving members of development industry just under a year to make relevant changes to their processes and practices. The Standards are reviewed every four years, which means in 2025 the City will have another opportunity to determine whether the Standards should be improved, or whether those coming into force next year represented an overstep to a complex industry.

In the wake of various climate disasters across the globe, and growing calls for more action on climate change, the question will not be whether the industry changes, but when.

On Friday June 11th, 2021, the City of Toronto’s (“the City’s”) Planning and Housing Committee (“the Committee”), adopted two items which could further change its development review process to provide a more seamless and collaborative approach to its assessment of development applications. We briefly outline these items below and will continue to monitor changes to these initiatives as they arise.

New Amendments to Concept 2 Keys (C2K) Program

We previously reported on the Concept 2 Keys (“C2K”) program in May 2021. On a basic level, C2K aims to reimagine organizational structures, processes, and technology to provide for a more seamless and collaborative approach to development review. This will be done through the launch of a new online application submission tool with new user-friendly forms and templates, the expansion of the online intake portal, and the creation of dedicated application review teams made up of members from various City divisions and overseen by new application managers and coordinators. C2K is currently being piloted on affordable housing development applications and long-term care home applications.

As reported to the June 11^th committee meeting, the C2K program is preparing for the launch of “Phase 2” of the program at the end of June 2021. This would expand the use of the program to application types beyond affordable housing and long-term care homes, within the Etobicoke-York District. Should these pilot programs succeed, it is intended the C2K program will be extended to the entire City..

As reported, the City is also undertaking a development fee review to improve its existing fee structure to recover the costs of service for development applications. This work is currently being performed by a consultant and is expected to be completed by the third quarter of 2021. Following this, City Staff will report back with recommendations to City Council in the fourth quarter.

Mandatory Pre-Application Consultations Proposed

The Committee likewise voted to implement the standardization of pre-application consultations on planning applications, and to make these consultations mandatory in order to submit a development application.

Standardization of pre-application consultations would involve facilitating interdivisional alignment on application requirements prior to an application being submitted and identifying solutions to application-related challenges.

Mandatory consultations are partially a response to the shortened statutory timelines brought in under Bill 108, for processing planning matters. These would be enacted through amendments both to Toronto’s Official plan and its Municipal Code. These two streams of work are expected to culminate in a City-wide roll-out of mandatory pre-application consultation in 2022, following a potential transition period once the aforementioned Official Plan Amendment has come into force and effect.

The Committee directed that Terms of Reference for this work should also include direction that applicants, as part of a pre-application consultation, discuss affordable housing and how the application will address the City’s policies related to providing a full range of housing.

It may not be as exciting as the song, “525,600 minutes”, but today, we talk about the Growth Plan’s targeted forecast for a Toronto of 3,650,000 people, and how many of them can be accommodated in existing housing stock.

On Friday June 11^th, 2021, the City of Toronto’s (“the City”) Planning and Housing Committee, received a report on Right-Sizing Housing and Generational Turnover (“the Report”). The Report will be considered as part of the City’s Municipal Comprehensive Review (“MCR”) of their Official Plan, to bring it into conformity with the 2051 population forecast targets outlined in the 2020 consolidation of the Province’s Growth Plan.

By 2051, the City’s population is projected to grow by over 700,000 people from 2016 levels. However, this number alone does not provide information on how many housing units will be required to accommodate this population, nor the housing sizes or types that are suitable to meet each household’s needs. The City’s MCR will help determine policies that prescribe housing type distribution in any new developments, making the discussion of whether certain housing types are needed more than others even more important. With this context, the Report considers whether current households are over-housed or under-housed, and whether housing turnover may fill some of the City’s housing needs to 2051.

Too Large… Too Small…

Housing suitability is determined based on the National Occupancy Standard (“NOS”) of the Canada Mortgage and Housing Corporation. This standard sets out the number of bedrooms that a household needs based on the number of people living in a household and their demographic factors, including age and relationship status. If a household has at least one less bedroom, then according to the NOS, it is deemed “under-housed”. If a household has at least one more bedroom, it is deemed “over-housed”. If the household has the exact number of bedrooms set out in the NOS, it meets the so-called goldilocks standard and is “right sized”.

The Report reveals that while 135,000 households in the City were under-housed in 2016, more than three times as many households were over-housed. Under-housed households were mainly those with children, particularly in mid- and high-rise units, while over-housing generally increased with the age of a household. Renters tended to be more under-housed than owners (18.6% versus 6.3%).

Importantly, the NOS does not consider the preferences of households in its calculations. For example, a household that has an extra bedroom but is frequently visited by friends and family, would still be counted as over-housed.

Potential to Accommodate Future Growth through Housing Turnover

Housing turnover occurs when a household vacates its dwelling, and a new household moves in. For example, downsizing is a form of turnover and refers to households owned by persons aged 50 years or older who transition from being over-housed to a unit that is right-sized, or has fewer unused bedrooms. When one household downsizes, it creates an opportunity for another household to move in, rather than occupy a new housing unit.

Housing turnover allows Toronto’s existing housing stock to play a role in determining how many new units the City will need to construct over the next 30 years. The Report estimates that approximately 25% of Toronto’s forecasted population growth to 2051 could be accommodated in its existing housing stock, and that by 2051, almost all 2016 housing stock occupied by older generational households will have turned over.

Consequently, not all future population growth needs to be accommodated in new housing.

The Report notes that this research may further support the City’s Expanding Housing Options in Neighbourhoods initiative, which deals with intensification of the City’s neighbourhoods, in which most over-housed households are living. It may also guide climate action initiatives given the carbon emissions associated with new development.

Farewell LPAT, we hardly knew ye.

On June 1, 2021, select changes from Ontario’s omnibus Bill 245, the Accelerating Access to Justice Act,  took effect. Among these changes is the amalgamation of the Local Planning Appeal Tribunal (“LPAT”), the Board of Negotiation, the Conservation Review Board, the Environmental Review Tribunal and the Mining and Lands Tribunal, into a single new body, the “Ontario Lands Tribunal” (“OLT”), pursuant to the Ontario Land Tribunal Act, 2021.

The Province first announced this decision and circulated a draft set of Rules of Practice and Procedure (the “Rules”) in January 2021. After receiving public submissions, the Rules that will govern the amalgamated Tribunal have been finalized. Notable changes to the procedures include:

New Focus on Cost Effectiveness and Efficiency

The OLT was introduced to eliminate overlap between cases, streamline the hearing process and to find efficiencies in tribunals’ specialized areas of adjudication and mediation expertise. The Rules build on these principles immediately by stating in Rule 1.3 that they are to be liberally interpreted to offer the best opportunity for a fair, just, expeditious, and (now) cost effective resolution of the merits of the proceedings.

To this extent, multiple time-saving processes have been introduced by the Rules into the OLT’s procedure. Among these are Rule 2.2, which introduces an Alternate Chair, who may perform the duties of the Chair and has all powers of the Chair in cases where the Chair is unable to act. Rule 5.1 removes the requirement to provide applications, appeals or referrals in hard-copy, instead calling for submission in electronic format, unless directed by the Tribunal otherwise. This likely goes hand in hand with the OLT’s new online document submission platform. Further, while new practices for electronic hearings have already been introduced, the Rules’ continued focus on these procedures suggest that these will also be used post-COVID.

Rule 19.2 mandates parties to present a draft procedural order prior to a case management conference (“CMC”). While this was already standard practice of the LPAT in many cases, this practice is now explicitly codified within the Rules, thus further expediting the hearing process, and streamlining the CMC process.

Renewed Focus on Mediation

Both the former Ontario Municipal Board and LPAT have been criticized for not having a procedure or framework for non-Tribunal members to conduct public mediations. This has led to significant time and cost delays as the timing of mediations depended on the Member’s scheduling, and often led parties to seek private mediation thereby increasing their legal costs.

The Rules have changed this process by allowing Tribunal-led mediations to be conducted by an approved external mediation service. Mediation assessments may also be conducted by external mediators approved by both the Chair and the Ministry of the Attorney General. Thus, the pool of public mediators available to OLT participants has been expanded. While the OLT Rules do not go as far as Rule 24.1 of the Rules of Civil Procedure (which mandates mediations in certain regions before a hearing can even occur), this change supports the promotion and facilitation of the mediation process.

Blurring of Notice Period Requirements

Rule 6.4, which set out different notice periods per type of planning appeal, has been removed, and new Rule 6.1 simply states the notice period will be directed by the Tribunal. While this change gives the Tribunal flexibility to set notice periods appropriate to the circumstances, it provides less certainty for municipalities, appellants, and the public to understand in advance how much notice they will be required to give, or will receive, prior to a hearing event.

Impartiality of Expert Witnesses

Another notable change in the Rules is an express provision in Rule 7.5 regarding the impartiality and professionality of expert witnesses. Expert witnesses that are giving oral evidence in examination in chief, under cross examination or while in reply, cannot seek or receive assistance or communication, except technical support, from third parties. This express Rule attempts to ensure that expert witnesses (and third parties) understand their professional duties when an expert is testifying in front of the Tribunal. This recognition was introduced into the Acknowledgement of Experts Duty forms when the LPAT went virtual post-COVID and is now codified in the new Rules.

The team at Davies Howe LLP will continue to monitor legislative and regulatory changes as they relate to land use planning and development.

As an update to our post from March 11, 2021 titled Parking Up the Right Tree: A Review of Parking Requirements for New Development, the City of Toronto is on track with the Parking Review timelines and will be hosting a number of public consultation meetings at the beginning of June. Three meetings will be held on June 1 (7-9 pm), June 2 (3-5 pm), and June 3 (1-3 pm). The feedback from these meetings will help inform recommendations for revised parking standards. Registration is available here for June 1, here for June 2 and here for June 3.

A second series of public meetings will take place in September where staff will present draft proposals to amend the zoning by-law. More information on the Parking Review can be found here.

The City of Toronto Moves Ahead with Modernizing the Toronto Building Division

The City of Toronto (the “City”) continues its modernization process and now proposes reforms to the Toronto Building Division (“Toronto Building”). Toronto Building’s role is to ensure that the City’s built environment is safe, healthy and accessible through controlling the issuance of building permits and performing building inspections. As the City’s building priorities adapt and change, there is a push to modernize Toronto Building’s operating model so that it reflects these changes.

On May 20, 2021 , the Planning and Housing Committee (the “PHC”) commenced the modernization process by adopting the recommendations set forth in Item 23.15 during its committee meeting. These recommendations direct the Chief Building Official and the Executive Director of Toronto Building to report back to the PHC in the second quarter of 2022 to provide an update on the implementation of the following recommendations:

1. Strengthening the existing processes related to demolition approvals, in collaboration with Heritage Preservation Services so that local City Councillors are notified of demolition applications for commercial buildings in their ward;
2. Implementing clear and accessible web-based tools to provide the public with current information on the status of Toronto Building investigation and enforcement activity, including complaints received through 311 Toronto; and
3. Developing a strategy, in consultation with the General Managers of Transportation Services and Municipal Licensing and Standards, to minimize the adverse impacts on the public as a result of large construction projects occurring within close proximity to one another.

The recommendations build on a Report published in May 2021 by KPMG, which provides a review of the Toronto Building Program, as well as on Toronto Building’s desire to become a client-centric regulator. The recommendations look to provide a more flexible and adaptive approach for different development types and to respond to ongoing issues faced by the City.

Recommendation 1 will likely work to prevent wholesale destruction of heritage buildings, in response to the recent media attention that demolition approvals have received. This recommendation may result in greater awareness of demolition applications on behalf of local councillors, to ensure that council is notified in a timely matter in case they wish to designate buildings under Section 27 of the Ontario Heritage Act.

Meanwhile, Recommendation 3 is likely a response to situations where multiple developments occur in close proximity to each other and, among other things, the future intensive construction along the rail corridor in Riverside. A fourth rail for expanded GO service is being proposed in the same area as the construction of the Ontario Line (cross section here). While impact studies have been done for both projects individually, neither project has considered the impact of the other in its reports. Recommendation 3 would result in more onerous requirements to consider the cumulative impacts of both projects.

This modernization will attempt to align Toronto Building with other transformation initiatives throughout the City such as the Concept to Keys program which, as we previously discussed here, is similarly reforming the development review process. For Toronto Building, a new permit application process will streamline simple projects by allowing the Division to work directly with applicants, either through face to face or virtual meetings, to address any outstanding deficiencies. Staff, services, and other resources will provide their services city-wide, rather than per district. A new service delivery model will also create new “back office” functions to enhance communication between City divisions, reduce costs through improved efficiency, and improve client satisfaction.

The PHC Item will proceed to Toronto City Council at its June 8/9 meetings for final consideration. If approved, Toronto Building will commence its modernization process.

The City of Toronto’s (the “City”) Infrastructure and Environment Committee (the “Committee”) adopted amendments to the existing Policy for Accepting Potentially Contaminated Lands to be Conveyed to the City under the Planning Act (the “Policy”), and recommended that they be approved by City Council at the May 5, 2021 Council Meeting.  However, rather than considering the proposed amendment (the “Updated Policy”), City Council referred the item to the Engineering and Construction Services (“ECS”) Chief Engineer for further consideration. While we patiently await the ECS comments, we can look at the Updated Policy as detailed in the City’s Staff Report and presented in Attachment 1.

Background

The Policy was first adopted by City Council on February 10, 2015.  The purpose of the Policy is to ensure that the City does not accept lands from applicants that present elevated risks to the environment, worker safety or public health.  The Policy contained environmental requirements which exceed Provincial laws and regulations, to protect the City from acquiring lands that have unacceptable liabilities associated with known or suspected environmental contamination. The Policy created a peer review process conducted by third-party qualified persons (“QPs”) as defined by O.Reg. 153/04 established under the Environmental Protection Act, and selected by the City.  The applicant bears the cost of this review process.

In November 2019, due to stakeholder criticism regarding the Policy’s lack of clarity, City Council requested that staff review potential amendments to the Policy and report back in Q4 of 2020.

The Updated Policy

The Updated Policy seeks to provide more certainty and clarity; expedite the peer review process; minimize the City’s liabilities related to accepting land; and continue to safeguard public health and the environment. However, the overarching objectives of the peer review process remain unchanged.

First, the Policy will be renamed the “Policy for Accepting Potentially Contaminated Lands to be Conveyed to the City as a Condition of a Development Application Approval”, to emphasize that the City may be authorized to require conveyance conditions under legislation other than the Planning Act, including the City of Toronto Act, 2006 and the Condominium Act, 1998.

The Updated Policy is proposed to include:

• Clarification of terminology and definitions, including 24 new definitions;

• Alignment of the stratified site condition standards with the Provincial legislation – these standards will apply to soil below a depth of 1.5m (subsurface soil), and are less stringent than the standards for surface soils;

• A risk assessment process – this will allow assessments for properties where it is not physically or economically feasible to remove all the contamination to determine whether the site-specific soil and groundwater standards can be developed to ensure the safety of the intended users;

• Strengthened procedural and notification requirements – the applicant and QPs will have elevated responsibilities to provide information to the City as it pertains to the conveyance of lands, as well as notifying City staff where it is likely that contamination has migrated onto adjacent City lands and poses a possible adverse effect; and

• Clarification of exemptions from the peer review process including:

1. Small parcel exemption – where the intended use is not changing to a more sensitive use. For example, residential land to be used as parkland or former industrial land to be used for road widening. The applicant will have to submit a rationale as to why they meet this exemption.

2. Dedication of small sized parks – where the lands were formally used for residential, institutional or park purposes; the areas are less than or equal to 100m²; or the areas are greater than 100m² but less than 1m in width. This was also an exemption in the former Policy.

3. Corner roundings exemption – where the lands conveyed for the purposes of a Right-of-Way corner rounding have an area less than or equal to 12.5m², provided they are not subject to a Record of Site Condition or a Certificate of Property Use.

This is a much-anticipated Policy update, and we hope that it will add more certainty and clarity to the City’s expectations and requirements for accepting potentially contaminated lands.

The Davies Howe LLP team would be happy to discuss the Updated Policy with you further.

In response to concerns regarding direct communications between Toronto Local Appeal Body (“TLAB”) Members and those involved in the TLAB hearing event, at the Q2 TLAB Public Business Meeting, the TLAB adopted Sub-Rule 2.6 to the TLAB’s Rules of Practice and Procedure.

Sub-Rule 2.6 requires that all communications with the TLAB concerning TLAB hearing events, excluding those that are strictly administrative in nature, must be made in the presence of, or copied to, all other parties to the hearing event. The effect of this rule is to ensure transparency in communications between all parties. The Members emphasized that the purpose of adopting this rule is to “reinforce the norm” to the public that, throughout the hearing process, all parties have a right to be privy to communications with TLAB Members.

After grappling with the question of how to increase the efficiency of the hearing process, at its May 7 Public Business Meeting, the Toronto Local Appeal Body (“TLAB”) decided it will move forward with a pilot project requiring Pre-Hearing Conferences (“PHC”) for all hearings anticipated to take longer than the typical duration.

Among several issues discussed, Item 31.5 proposed a new Practice Direction for Hearing Extensions (the “Proposed Direction”). The Proposed Direction was an attempt to address public feedback which characterized the current TLAB process as cumbersome and inefficient. It would require ‘variance-only’ hearings to be scheduled for no more than 2 hearing days and for ‘consent and variances’ hearings to be scheduled for no more than 4 hearing days. If the assigned Member believes a hearing may require additional days, the Member would hold a PHC where they could hear from all Parties on scheduling and determine the appropriate number of days required for the hearing. This proposal was intended to increase the efficiency of the TLAB process by establishing firm commitments from the Parties and representatives involved concerning the amount of time required throughout each step of the hearing process.

Throughout the discussion, several TLAB Members expressed concern that placing limitations on hearing days could hurt the current process. The Members believe that setting a limitation on the number of days for a hearing may lead to some Parties not having an adequate amount of time to defend their positions. While the Members of the TLAB acknowledged the importance of increasing the efficiency of the current process, the Members were more concerned with ensuring that those who participate in the TLAB process feel that they have been given a fair hearing with sufficient time to be heard.

As such, the Members were not in favour of the Proposed Direction. However, a pilot project for PHCs will move forward, in which certain matters will have a PHC scheduled and heard by the Vice-Chair of the TLAB. In PHCs, the Parties would be encouraged to settle or resolve the issues raised. If a TLAB hearing is still required, the Vice-Chair would establish a limit on the number of hearing days. The Board will reconsider this Item at a later date following feedback from the pilot project.

In a May 6, 2021  Council decision, the City of Toronto (the “City”) adopted the recommendations set forth in item PH22.7, which directs City Planning to conduct a study regarding potential changes to the Committee of Adjustment (“CoA”), including but not limited to:

• Alternatives to the CoA process for minor variances and severances;
• Changes to notice options;
• Resident concerns with the current process;
• Education and training of Members on both procedures and substance of the CoA mandate; and
• Revisions to committee processes, based on tribunal best practices.

What do the potential changes mean?

It is unclear what possible alternatives exist for the passage of minor variances and severances. Section 44 of the Planning Act (the “Act”) states that a municipality may by by-law constitute and appoint a CoA, while subsections 45(1) and 53(1) authorize a CoA to grant minor variances or consents. In theory, this means that the City could choose to administer minor variances and consents without a CoA; however, given thousands of matters are dealt with at committee every year, it is unlikely that the City’s reappropriation of these powers would lead to a more efficient or expeditious planning process.

In the City’s deliberations, concerns were also raised that Notices of Public Hearings were not being delivered in time to residents, thus preventing residents from speaking before the committee, or simply giving inadequate time for them to prepare remarks. Section 3 of Ontario Regulation 200/96 Minor Variance Applications (the “Regulation”) requires a Notice Period of at least 10 days before a hearing to be given to every landowner within 60 metres of the application area. The City’s internal process is to mail notice 20 days ahead of a hearing. As of the onset of virtual CoA hearings on May 28, 2020, the City has extended this notice to 22-24 days. It is uncertain if a further extension would have a significant impact on resident participation.

Lastly, during its meeting council proposed studying changes in respect of:

• Access to the CoA
• The transparency of the hearing process
• The grounds upon which the CoA makes their decisions.

These proposals were brought forth largely in response to comments received from certain resident groups to address perceived unfairness within both the CoA’s process and its planning decisions. These considerations will ultimately be part of City Planning’s review of the CoA and inform its eventual recommendations to Council.

While this review is in its early stages, we will continue to monitor potential changes to the CoA and outline any future impacts to matters before the body in a future blog post.