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“Not everything that can be counted counts, and not everything that counts can be counted.”
– Albert Einstein

Is planning a numbers game? Or is it context sensitive? A recent case from the Toronto Local Appeal Tribunal (the “TLAB”) suggests that, at least in Toronto in relation to minor variance applications, it’s the latter. In CZ Designs and Consulting Inc, Re. (2022) (“CZ Designs”), the TLAB agreed with the Committee of Adjustment (the “Committee”) and granted variances for floor space index, building length, and staircase width at the rear of the property to facilitate the construction of a new dwelling at 251 Old Forest Hill Road.

From a numerical perspective, the variances requested greatly exceeded the range of floor space indexes, building lengths, and staircase widths found in the neighbourhood and approved in other variance applications. However, when considering the numerical data put before him by the planner opposing the project, Member Swinkin appeared skeptical. “Perspective matters”, he stated. A “purely arithmetic approach adopted [by the opposing planner] has the effect of removing context from the assessment of the proposal and diminishing the qualitative features from their role in an all encompassing judgement”.

Far from a new paradigm, Member Swinkin’s decision seemingly returns the TLAB to the context sensitive approach developed over many decades at prior land use planning tribunals. What follows is the history of this approach, its subsequent decline, and its rebirth.

Background – Neighbourhood Character Past

A line of cases before the TLAB, and before it the Local Planning Appeal Tribunal (the “LPAT”) and the Ontario Municipal Board (the “OMB”), have all emphasized the importance of context in assessing minor variance applications.

In Lindsay, Re. (1997), the OMB approved a minor variance that reduced the site’s setback requirements to zero, therefore allowing the construction of a minaret tower. While a drastic change from the existing zoning, Member Melling noted that “in practical terms” the property line was not adjacent to the street, and therefore, the intent of the Zoning By-law, that traffic sight lines be adequate, would be maintained.

In Toronto Standard Condominium Corp. No. 1517 v. Toronto (City) (2006), the OMB used this logic to establish the “TSCC principle” that has been followed numerous times. That is:

Minor […] cannot be regarded as a robotic exercise of the degree of numeric deviation, but must be held in light of the fit of appropriateness, the sense of proportion, a due regard to the built and planned environment, the reasons for which the requirement is instituted, the suggested mitigation conditions to address the possible concerns and last, but not the least, the impact of the deviation.

[…]

A long line of Board cases has held that the assessment of whether it is minor or not cannot be fathomed on an a priority basis. It has been our consistent practice that the question of minor is best to be assessed on an empirical, a concrete and fact-specific basis.

The OMB went on to look at the context of the neighbourhood and approved a minor variance allowing for a narrower driveway width.

In F&A Associates (2017), TLAB Member Burton, citing the TSCC principle, granted a variance for a higher lot coverage that was originally refused by the Committee, holding that the variance “does not appear to be a significant increase from the by-law” and that “[t]his finding is made only in the light of the individual circumstances of this property, its size and location next to a corner lot”. The TLAB went on to state that the “purpose and sense of proportion” must be considered alongside the numerical values of a variance.

Until this point, the context of a development, including its neighbourhood context, carried the day.  But this changed in 2018.

OPA 320 – Neighbourhood Character Present

“At last we have democracy. Or perhaps we have residents’ groups that control their local councillors, thus ensuring the everlasting “stability” of their neighbourhoods.”
– George Popper (Architect, Urban Fabric Developments)

Official Plan Amendment No. 320 (“OPA 320”) was passed by the City of Toronto (the “City”) Council in 2015 but did not come into force and effect until December 2018, due to appeals before the LPAT. OPA 320 built upon an existing City Official Plan policy to require new development within the City’s existing “Neighbourhoods” designation, to respect and reinforce that neighbourhood’s so-called ’prevailing’ physical character. At a settlement hearing, the LPAT approved OPA 320 with an amended policy which further clarified “prevailing” to mean “the most frequently occurring”, or, where neighbourhoods contain a mix of physical characters that which “exists in substantial numbers.”

While the intent of this amendment was to provide greater stability within the City’s existing neighbourhoods, the focus on “most frequently occurring” and “in substantial numbers” drove the planning process towards a numbers game.

In practice, to demonstrate “prevailing” as introduced by OPA 320, it is now expected that a study be done, to show that the proposed development is “materially consistent with the prevailing physical character of properties”. The prevailing character must be assessed at both an immediate neighbourhood context (within properties facing the same street as the proposed development, on both the same block and the block opposite) and a broader neighbourhood context (the entire geographic neighbourhood). This requirement adds a significant layer to the planning process, which drives up costs for proponents and turns what should be efficient TLAB hearings into multi-day affairs, complete with lengthy statistical analyses.

In Mahboubi, Re. (2021), the TLAB considered and denied an application for a minor variance to facilitate construction of a parking pad on the property to allow for electric vehicle charging. The City opposed the request in part because most houses on the street did not have front parking pads, whereas those with parking pads cumulatively represented only 12% of properties on the street.  Rather than discuss the application purely on its merits, the City opposed the variance because front facing parking pads constituted “the minority for the neighbourhood in question” and “would not respect and reinforce the prevailing character.” Accordingly, the application failed because it did not maintain the general intent and purpose of the City’s Official Plan as amended by OPA 320.

In another instance, the Committee accepted the advice of City planning staff, and refused to grant variances to facilitate the construction of a triplex at 54 Westhampton Road, in major part because the “prevailing” character of the neighbourhood under OPA 320 was one without triplexes. This refusal was despite the fact that triplexes were permitted as-of-right on the subject lands by the zoning bylaw, and variances were only needed for height and other technical performance standards.

While that decision was ultimately overturned at the TLAB in Studio K Architects Inc., Re 2020 (“Studio K”), this did not stop the City’s planners from making arguments that triplexes “could potentially destabilize the neighbourhood” and participants from referencing the impacts that could come from “a potential outdoor gathering / barbecue” with a potential twelve residents and their guests. The TLAB ultimately held that the “use” of the building, as a triplex, did not violate the provisions in OPA 320 which deal specifically with physical character.

While a win for the applicant, in a broader context, the TLAB process for this development represents a failure to streamline the planning process and efficiently approve gentle densification. The hearing alone took over one month to conclude. This process ultimately delays much needed housing development under the guise of neighbourhood stability.

Legislative and Bylaw Amendments – Neighbourhood Character Future?

In recent years, a wide variety of planning amendments, both at the provincial and municipal levels, have been brought forward in an attempt to rectify the problems noted above. This includes removing barriers to gentle density in existing, predominantly single-detached housing, neighbourhoods.

On November 28, 2022 Bill 23, the More Homes Built Faster Act was passed by the Government of Ontario and came into force and effect. Among other changes to the planning regime, Bill 23 legalized the creation of multi-unit houses by allowing the following housing typologies on urban residential land:

• Two residential units in a detached house, semi-detached house or rowhouse where there is no more than one ancillary residential unit;
• Three residential units in a detached house, semi-detached house or rowhouse where there are no ancillary residential units; and
• One residential unit in a building or structure ancillary to a detached house, semi-detached house or rowhouse, (provided no more than two other residential units on site).

On May 10, 2023, the City went further by adopting Official Plan Amendment No. 649 (“OPA 649”) and an associated Zoning Bylaw Amendment, to legalize fourplexes as of right on land designated by the City as “Neighbourhoods”. Notably, OPA  649 permitted multiplexes in Neighbourhoods, “despite” the “prevailing” language added by OPA 320. While not eliminating the term “prevailing” altogether, OPA 649 reaffirms the Studio K decision that “use” does not equate to physical form.

This multiplex allowance is part of a larger program at the City, called “Expanding Housing Options in Neighbourhoods”. Past work has involved the approval of laneway and garden suites and future work is expected to endorse the creation of low-rise residential development on all arterial streets across the City.

Member Swinken’s analysis in CZ Designs shows an acknowledgement by the TLAB that numbers alone cannot determine good planning. Mathematics can help to determine what is “prevailing”, but cannot define it altogether.

The City has not clawed back OPA 320 but has an opportunity to do so in its ongoing municipal comprehensive review. Whatever the result, Davies Howe LLP will be here to guide you for all your land use planning needs.

The Court of Appeal recently determined, in Kosicki v. Toronto (City),  that one can acquire title over municipal parkland through adverse possession only if the municipality has waived its rights over the property, or acknowledged or acquiesced to its use by a private landowner.

Summary of the Case

The appellants own a house near the Humber River in Toronto. The City is the registered owner of a park along the river south of the property, including a large area behind the appellants’ house which is fenced-in and effectively forms part of the backyard (the “Disputed Lands”).

The Disputed Lands have been enclosed with a chain-link fence and used exclusively by the owners of the appellants’ property since 1971 or earlier. The appellants treated the Disputed Lands as part of their backyard and paid taxes on it, which were accepted by the City until 2020. However, the Disputed Lands are designated as “Parks and Open Space Areas” under the City’s Official Plan, and zoned “Open Space” under the Zoning By-law. The appellants approached the City about purchasing the Disputed Lands in 2021. The City refused to sell, and the appellants brought an Application to the Superior Court of Justice claiming title to the Disputed Lands through adverse possession.

The Application Judge found the appellants’ claim met the three-part test for adverse possession (actual possession, intention to exclude true owner, and effectively excluded true owner) for the applicable 10-year period, as the Disputed Lands were fenced in by the previous owners of the property since at least 1971, with no objections from the City. However, since the lands were owned by the City rather than a private party, the Application Judge found that publicly-owned lands intended for parks purposes are immune to claims of adverse possession.

The Application Judge also found that the Disputed Lands were originally required for a “very high public interest”, as they were conveyed to the City as parkland, and that allowing adverse possession would set a “dangerous precedent”.

The Court of Appeal issued a split decision. The majority held that where adverse possession of municipal lands is at issue, other than municipal lands specifically referred to in section 16 of the Real Property Limitations Act (the “RPLA”), such claims will be resolved by recourse to the common law, as the RPLA is not a complete code for the treatment of adverse possession of public lands.

The majority upheld the Application Judge’s decision, but reframed the test as follows: adverse possession claims against municipal parkland will not succeed where the land was purchased by or dedicated to the municipality for the use or benefit of the public, and the municipality has not waived its presumptive rights over the property, or acknowledged or acquiesced to its use by a private landowner or landowners.

Justice Brown wrote a dissenting opinion, forcefully disagreeing with the majority. He concluded that the RPLA has codified the law on adverse possession and thus common law is not required to “fill the gaps”. He also did not believe the existing case law justified establishing the test put forward by the majority. In Justice Brown’s view, immunizing all public lands from claims of adverse possession effectively amends the RPLA and other statutes and is contrary to legislative intent. The appellants met the requirements for possessory title over the Disputed Lands, and Justice Brown would have allowed the appeal.

Key Takeaways

The disagreement within the Court of Appeal in this case centres on the precedence of common law versus the RPLA on adverse possession. Unless the Supreme Court of Canada intervenes, there is now a high bar to gain title to municipal parkland through adverse possession. Whether the Court of Appeal’s test also applies to all municipally-owned land or to all public lands is not entirely clear in the decision, and will require judicial consideration.

In the recent decision of South West Terminal Ltd v Achter Land and Cattle Ltd, the King’s Bench of Saskatchewan accepted the thumbs up emoji 👍 as an electronic signature and represented the acceptance of a contract.

Summary of the Case

The Plaintiff is a grain and crop inputs company that had a long-standing relationship with the Defendant, a farming corporation. The Plaintiff had purchased grain from the Defendant through various grain contracts since approximately 2012.

The contract in dispute occurred on March 26, 2021, when the Plaintiff received a call from the Defendant following the Plaintiff’s advertising for a flax contract. After a discussion with the Defendant, the Plaintiff drafted a contract for the Defendant to sell 86 metric tonnes of flax to the Plaintiff at a price of $17 per bushel with delivery set to be in November of 2021. The Plaintiff’s representative applied his ink signature on the contract, took a photo of the contract using his cell phone, and texted this photo to the Defendant’s representative with the message “Please confirm flax contract.” The Defendant’s representative texted him back a thumbs up emoji. The Defendant did not deliver the flax and the trading price of flax in November increased to $41 per bushel.

The Plaintiff successfully sued the Defendant for $82,200.21 plus interest and costs for breach of contract.

In Court, the Defendant argued that there was no contract formed as his thumbs up emoji was confirming the receipt of the contract and not his agreement to the contract. The Plaintiff argued that the thumbs up emoji was similar to agreed upon contracts between the two parties in the past, where the contracts were sent in the same way and between the same representatives as the contract in dispute. In those instances, the Defendant had responded with “ok”, “yup”, and “looks good” in agreement to the contract instead of the thumbs up emoji. In these instances, the flax was delivered.

The Court agreed with the Plaintiff in determining that the circumstances leading up to the disputed contract, with the multiple previous contract negotiations resulting in contracts, supported the Plaintiff’s position.  In this case the Defendant okayed or approved the contract just as they had previously done  except this time they used a thumbs up emoji.

While the Court acknowledged that an emoji is a non-traditional means to sign a document, in these circumstances this was a valid way to convey the two purposes of a signature – to identify the signature by using the Defendant representative’s unique phone number (used in the text exchange) and to convey acceptance of the contract terms.

While the Court agreed that the case was novel, at least in Saskatchewan, the Court stated that it cannot and should not attempt to stem the tide of technology and common usage.

Key Takeaways

The circumstances of the disputed contract and the prior relationship between the two parties was an integral part of determining that the thumbs up emoji conveyed acceptance of the contract terms in this case.  A thumbs up emoji might be interpreted as an electronic signature if it is supported by a pattern of behavior to convey acceptance and if it is possible to clearly identify who sent the emoji.

On June 16^th, 2023, the Province published an updated version of the Provincial Planning Statement, 2023 (the “PPS 2023”) to the Environmental Registry of Ontario which now includes natural heritage policies and related definitions. Overall, there are few noteworthy modifications from the natural heritage policies found in the Provincial Policy Statement, 2020 (the “PPS 2020”).

Base Policies Left Unchanged

No changes were made to the natural heritage policies of the PPS 2020. However, the policies have been transposed to Section 4.1 of the PPS 2023.

Some Modifications Made to Associated Definitions

The update does make several noteworthy modifications to the definitions associated with the natural heritage policies. These changes are summarized below.

Natural Heritage Features and Areas

The definition of Natural Heritage Features and Areas has been modified to no longer include “habitat of endangered species and threatened species” which is separately defined.

Negative Impacts

The definition of Negative Impacts has been expanded to make it clear that any development or site alteration that would preclude the function of transportation and infrastructure corridors or otherwise compromise or conflict with their planned or existing function or capacity would constitute a Negative Impact on the corridor. A Negative Impact could also arise in the transportation and infrastructure corridor context should development or site alteration give rise to cost conflicts.

Significant

The definition of Significant has removed reference to the Ontario Ministry of Natural Resources and Forestry in particular and now refers to evaluation procedures and criteria established by the Province more broadly.  Additionally, mention of cultural heritage and archaeology resources that have been determined to have cultural heritage value have been removed from the definition of Significant.

Wetlands

Under the definition for Wetland, additional language is provided that makes it clear that lands that are periodically soaked or are being used for agricultural purposes which no longer exhibit wetland characteristics are not Wetlands.

Conclusion

For the most part the natural heritage policies of the PPS 2023 reflect those found in the PPS 2020, which should minimize uncertainty about how the policies are to be applied, should they come in force as proposed.

On May 18^th, 2023 the Ontario government introduced Bill 112, the Hazel McCallion Act (Peel Dissolution), 2023. If proclaimed into law, the Act would dissolve Peel Region on January 1, 2025. Brampton, Mississauga and Caledon would all become single-tier municipalities thereafter.

The Transition Board

The Act does not provide specifics on how the dissolution of the Region, distribution of assets and liabilities, and the restructuring functions will be accomplished. Instead, the approach Bill 112 takes is to authorize the Minister to appoint a “Transition Board” of up to five people. The Transition Board will monitor the actions of the Region, Mississauga, Brampton and Caledon during the transition and is given the power to compel disclosure to assist in that role. The Transition Board is also tasked with providing recommendations to the Minister on the restructuring. The recommendations could be implemented through a variety of mechanisms, including through the passage of future regulations. However, the creation of regulations is not limited to the implementation of recommendations from the Transition Board.

A Requirement to Act in the Public Interest

Bill 112 contains provisions requiring the Region, Mississauga, Brampton and Caledon to consider the restructuring and public interest in transactions, commitments, and agreements entered into after May 18, 2023. The provision seems intended to ensure prudent decision making while simultaneously discouraging waste. The Transition Board is empowered to direct any of the municipalities to undo or not proceed with actions that the Transition Board sees as contrary to the public interest. That power is backstopped by the Minister’s power to make an order should the need arise.

Conclusion

What is clear is that Bill 112 is only the first step in what promises to be complex restructuring process that will be closely watched across much of Ontario.

On April 6, 2023, the Province published a proposal on the Environmental Registry of Ontario seeking input on the creation of an integrated Province-wide land use planning policy document, the Provincial Planning Statement (the “New PPS”). The New PPS proposes to take policies from the Provincial Policy Statement (the “PPS 2020”) and A Place to Grow: Growth Plan for the Greater Horseshoe Area (the “Growth Plan”) in an effort to support the achievement of housing objectives, while balancing the need to protect the environment and agricultural lands. The comment period is open until June 5, 2023.

The New PPS would be considered a policy statement for the purposes of subsection 3(1) of the Planning Act. In accordance with paragraph 3(5)(a) of the Planning Act, decisions of approval authorities would be required to be consistent with this document.

The significant highlights are summarized below and include policy direction to:

1. Generate Housing Supply and Make Land Available for Development.

2. Provide Infrastructure to Support Development.

3. Balance Housing with Resources.

Generating Housing Supply and Making Land Available for Development

Consistent with the Province’s direction to build 1.5 million homes, the New PPS includes policies that identify large and fast-growing municipalities, eliminate intensification targets and broaden a municipality’s ability to expand settlement areas. Below are details on some of the highlights.

            New Definition: Large and Fast-Growing Municipalities

The New PPS defines “large and fast-growing municipalities” as municipalities listed in Schedule 1.[1] Certain policies of the New PPS will only apply to the 29 listed municipalities. For example, large and fast-growing municipalities:

• Will be encouraged to plan for a minimum density target of 50 residents and jobs per hectare;

• Will identify and focus growth and development in strategic growth areas (“SGA”); and

• Will delineate the boundaries of Major Transit Station Areas (“MTSA”) on Higher Order Transit corridors through a new official plan or an official plan amendment.

            Growth Forecasts and Planning Horizons

Municipalities will no longer be required to plan for specific population and employment forecasts for an identified horizon year, as is currently the case pursuant to Schedule 3 of the Growth Plan. Instead, municipalities will be expected to complete their own forecasts, with the 2051 forecasting targets set as a minimum. Additionally, municipalities will be required to have enough land designated for at least 25 years (whereas the current requirement is to have enough land designated for up to 25 years) with planning permitted to extend beyond this horizon for infrastructure, employment areas and SGAs.

The PPS 2020 housing policy requirements to maintain lands designated and available for residential growth for a minimum of 15 years, and to maintain zoned lands with servicing capacity sufficient to provide at least 3 years of supply of residential units are maintained.

            Removal of Municipal Comprehensive Review

Currently, the Growth Plan contains various policies that generally only permit conversion of employment lands and the expansion of settlement areas through a municipal comprehensive review (“MCR”). The concept of the MCR has been removed in the New PPS, and as a result, the conversion of employment lands to non-employment lands and the expansion of settlement areas will be able to occur at any time.

            Settlement Areas and Settlement Area Boundary Expansion

The policies relating to settlement areas and settlement area boundary expansions are proposed to be revised substantially. Under the new policies, a new settlement area or expansion may occur at any time provided that planning authorities consider the following criteria:

• There is sufficient existing or planned capacity of infrastructure and public service facilities;

• The lands are not specialty crop areas;

• There is compliance with minimum distance separation formulae;

• Any impacts on agricultural lands are minimized or mitigated; and

• Whether there will be phased progression of urban development.

In addition, there will no longer be any prescribed density targets for new settlement areas; however, as noted above, large and fast-growing municipalities will be encouraged to plan for a minimum density target of 50 residents and jobs per gross hectare.

            Strategic Growth Areas

SGAs are a concept previously introduced in the Growth Plan and include MTSAs, Urban Growth Centres and other areas where growth or development will be focused. The New PPS would require large and fast-growing municipalities to identify SGAs and would permit other municipalities to do so at their discretion. This involves identifying an appropriate minimum density target and the appropriate type and scale of development for each SGA, as well as identifying appropriate transition of built form to areas adjacent to an SGA.

A new policy is also proposed that would require any reduction in size or change of location of an Urban Growth Centre that is identified in an official plan as of a date to be announced to occur only by way of a new official plan or an official plan amendment adopted under section 26 of the Planning Act.

            Major Transit Station Areas

The New PPS would incorporate the Growth Plan’s concept of MTSAs with some modifications. The proposed policies direct large and fast-growing municipalities to identify MTSAs and permit other municipalities to plan for MTSAs by delineating their boundaries on higher order transit corridors (i.e. GO Train and LRT stations) and establishing minimum density targets. The specified density targets and 500m to 800m radius delineation area remain unchanged.

            Increased Residential Development in Rural Areas

Currently, the PPS 2020 promotes development in rural areas that is compatible with the rural landscape and that encourages the conservation of existing rural housing stock on rural lands. The New PPS proposes to remove these policies to facilitate more development on rural lands. In addition, the New PPS proposes to permit increased residential development on rural lands by permitting multi-lot residential development where the site conditions are suitable for the provision of appropriate sewage and water services.

The New PPS also proposes to modify the agricultural policies of the PPS 2020 to facilitate more residential development in prime agricultural areas. The New PPS would permit a principal dwelling associated with an agricultural operation with some limited exceptions as well as up to two additional residential units provided the proposed units meet certain conditions. In addition, the New PPS would introduce policies permitting residential lot creation in prime agricultural areas in accordance with specific conditions.

            Employment Areas

The definition of an employment area is proposed to be amended to be consistent with proposed amendments to the Planning Act introduced by Bill 97, Helping Homebuyers, Protecting Tenants Act, 2023. The amendments propose to exclude office, institutional and commercial (retail) uses from the definition of employment area, unless associated with a primary employment area use.

Through the deletion of the MCR, employment conversions may occur at any time, subject to the conversion criteria, which are mostly the same as those in the PPS 2020 with some clarification added.

The Growth Plan concept of Provincially Significant Employment Zones (“PSEZs”) is also proposed to be removed. PSEZs are currently protected from conversion to non-employment uses unless it has been demonstrated to be appropriate in the context of an MCR. However, the Province has indicated that it is considering implementing the PSEZ concept through Ministerial Zoning Orders.

While the New PPS still requires the development of major facilities and sensitive land uses to avoid or minimize and mitigate any potential adverse effects and impacts to major facilities, there is no longer a requirement to demonstrate that there is an identified need for the sensitive land use or that there are no reasonable alternative locations.

The New PPS also directs planning authorities to protect and preserve employment areas located in proximity to major goods movement facilities and corridors, including facilities and corridors identified in provincial transportation plans.

Infrastructure to Support Development

The New PPS would prioritize planning and investments in infrastructure and public service facilities to support SGAs as focal areas for growth and development.

It would also encourage planning authorities, in consultation with school boards, to consider innovative approaches in the design of schools and associated childcare facilities in SGAs and other areas with a compact built form (i.e., schools integrated in high-rise developments).

Balance of Housing with Resources

            Expanded Housing Options Definition

The New PPS would expand the definition of ‘housing options’ to include laneway housing, garden suites, rooming houses, low- and mid-rise apartments, additional needs housing, multi-generational housing, student housing, farm worker housing, culturally appropriate housing, supportive housing, community housing and transitional housing.

            Removal of Affordable Housing Definition

The New PPS proposes to remove the definition of “affordable”, which currently exists in both the PPS 2020 and the Growth Plan. It also proposes to remove references to “market based and affordable housing” in the new housing policies as well as the current policy in the PPS 2020 that requires planning authorities to establish and implement minimum targets for the provision of housing which is affordable to low- and moderate-income households. Instead, the New PPS proposes a policy requiring planning authorities to co-ordinate land use planning and planning for housing with Service Managers to address the full range of housing options including housing affordability needs.

            Conversion of Existing Commercial and Institutional Buildings for Residential Use

The New PPS proposes to add a policy that planning authorities shall provide for an appropriate range and mix of housing options and densities by, among other things, permitting and facilitating the conversion of existing commercial and institutional buildings for residential use, the introduction of new housing options within previously developed areas and redevelopment which results in a net increase in residential units.

            Agriculture

The New PPS encourages planning authorities to enhance a geographically continuous agricultural land base and maintains many of the PPS 2020 agriculture policies. However, it would no longer require municipalities to use the Provincially mapped Agricultural System, but it would still encourage municipalities to use an agricultural system approach based on provincial guidance. It is unclear whether this guidance will be based on the existing Provincial Map of the Agricultural Land Base, or other provincial guidance.

Natural Heritage

The Natural Heritage policies and related definitions which currently exist in both the PPS 2020 and the Growth Plan are still under consideration by the Province.

Transition

On the same day the Province released the draft New PPS, it released its Proposed Approach to Implementation of the New PPS (the “Implementation Document”), which outlines the approach to determining the effective date and transition of the New PPS; the timing for official plan updates; employment area changes; and other Growth Plan specific transition matters.

In terms of the effective date, the Province is targeting fall 2023 for the New PPS policies to take effect. However, Bill 97 provides the Minister of Municipal Affairs and Housing with the authority to make transition regulations, which, if enacted, could change this date in prescribed circumstances.

In terms of official plan updates, the Province is proposing that official plans be updated as necessary to implement the New PPS policies at the time of their ordinary review cycle (i.e. every five years for existing official plans and every ten years for new official plans), with the exception of the revised definition of “area of employment” and employment area policies.

If Bill 97 is passed, many municipalities’ existing employment areas may permit uses which no longer meet the definition of an “area of employment”, and as a result, time-sensitive official plan updates would be required so that the permissions in designated employment areas comply with the permissions outlined in the proposed Planning Act amendments. In addition, to maintain the integrity of employment areas that are intended to remain protected, municipalities will be encouraged to explicitly authorize the site-specific permission of any existing employment uses that do not align with the new definition. Once/if the proposed legislative changes take effect, areas that do not meet the definition of “area of employment” and are not granted site-specific permission by a municipality, will no longer be subject to policy requirements for “conversions” to non-employment areas.

The Implementation Document also provides an update on the Bill 23, More Homes Built Faster Act, 2022 amendments which propose the removal of 7 upper-tier municipalities from being statutory approval authorities under the Planning Act, indicating that these amendments would not take effect until winter 2024 at the earliest.

Conclusion

Davies Howe LLP will continue to monitor the changes proposed to Ontario’s land use planning framework. Please reach out with any questions as to how these changes may impact you.

[1] Large and Fast Growing Municipalities include Town of Ajax; City of Barrie; City of Brampton; City of Brantford; City of Burlington; Town of Caledon; City of Cambridge; Municipality of Clarington; City of Guelph; City of Hamilton; City of Kingston; City of Kitchener; City of London; City of Markham; Town of Milton; City of Mississauga; Town of Newmarket; City of Niagara Falls; Town of Oakville; City of Oshawa; City of Ottawa; City of Pickering; City of Richmond Hill; City of St. Catharines; City of Toronto; City of Vaughan; City of Waterloo; Town of Whitby; and City of Windsor.

ULI Toronto April 19, 2023 – Meaghan presentation