News & Posts

*Originally posted on November 1, 2022, updated on November 30, 2022.

On October 25, 2022, the Province introduced Bill 23, More Homes Built Faster, 2022, which received royal assent on November 28, 2022. The Bill was referred to the Standing Committee on Heritage, Infrastructure and Cultural Policy (the “Committee”) on October 31, 2022 and subsequently amended. The below blog has been updated to reflect these amendments.

This is Part 3 of Davies Howe LLP’s Bill 23 blog-series, which focuses on the changes to the Ontario Land Tribunal Act, 2021 (the “OLT Act”).

The OLT Act governs the process and procedures of the Ontario Land Tribunal (the “Tribunal”), which plays a critical role in Ontario’s land use planning system. It is thus not surprising that Bill 23 introduced various amendments to the OLT Act itself.

New Powers for the Tribunal to Dismiss Appeals Without Hearings

Currently, on a motion of a party or on its own initiative, the Tribunal may dismiss a proceeding without a hearing (subject to notice requirements) if:

1. The party who brought the proceeding did not pay the required fees;
2. The party did not respond to a request by the Tribunal for further information;
3. The Tribunal is of the opinion that the proceeding had no reasonable prospect of success;
4. The Tribunal is of the opinion that the proceeding is:
   1. Frivolous, vexatious or commenced in bad faith;
   2. Relates to matters outside the Tribunal’s jurisdiction; or
   3. Some aspect of statutory requirements for bringing the proceeding has not been met; and
5. In any other circumstance provided for under any Act.

On a date to be proclaimed by the Lieutenant Governor in Councillor (“LG”), the following additional grounds for the Tribunal to dismiss a proceeding will come into effect:

1. If the Tribunal is of the opinion that the party who brought the proceeding has contributed to undue delay.
2. If the Tribunal is of the opinion that a party failed to comply with an order of the Tribunal in the proceeding.

These new powers are evidence of Provincial direction to ensure that Tribunal proceedings proceed expeditiously and in an organized fashion.

Direction to Award Costs

The Tribunal is currently permitted to order a party to a proceeding to pay costs in accordance with its rules but does so cautiously and sparingly. On a date to be proclaimed by the LG, an additional subsection to the OLT Act will become effective that expressly states the Tribunal has the power to order an unsuccessful party to pay a successful party’s costs. The Province has indicated that the purpose of this amendment is to encourage parties to reach an agreement without going to the Tribunal.

Expanded Regulation-Making Authority

Bill 23 expanded the LG’s regulation-making power to permit it to make regulations requiring the Tribunal to prioritize the resolution of specified classes of proceedings. These classes of proceedings will be specified by regulation. This change will also become effective on a day to be proclaimed by the LG. The Province has indicated that they intend to prioritize OLT proceedings which create the most housing. The proposed Regulation will be developed after consultations with affected ministries.

Bill 23 also clarified aspects of the Attorney General’s (the “AG”) regulation-making power with respect to regulations regarding the governing practices and procedures of the Tribunal. The amendment specifies that the AG may also make regulations prescribing service standards with respect to Tribunal case resolution (i.e., specified timing and steps). Once drafted, the proposed new Regulation will be posted on the Regulatory Registry for consultation.

If/when these timelines are prescribed by the AG, and the Tribunal fails to comply with such prescribed timeline, this does not invalidate the proceeding nor can it be grounds for an order or decision of the Tribunal to be set aside. However, the AG may request that the Tribunal report to the AG regarding compliance (or lack thereof) with the prescribed timelines.

Other Initiatives

The Province has also indicated that it will invest in more adjudicators and other resources to permit the Tribunal to speed up proceedings, resolve cases faster, hear priority projects sooner and reduce the number of outstanding cases so that more housing can be created.

Conclusion

If you wish to discuss how these changes may impact your current or future Tribunal-proceeding, please do not hesitate to contact the team at Davies Howe LLP.

The next blog-series, Part 4, will outline the changes to the Ontario Heritage Act.

*Originally posted on November 1, 2022, updated on November 30, 2022.

On October 25, 2022, the Province introduced Bill 23, More Homes Built Faster, 2022, which received royal assent on November 28, 2022. As the Bill was referred to the Standing Committee on Heritage, Infrastructure and Cultural Policy (the “Committee”) on October 31, 2022 and subsequently amended, the below blog has been updated to reflect these amendments.

Bill 23 amended nine statutes and introduced a new statute regarding servicing infrastructure in York and Durham Regions. These changes will have significant impacts on the land development industry and on how growth is financed.

This post constitutes Part 2 of Davies Howe LLP’s Bill 23 series, which focuses on changes to the Province’s “Growth Funding Tools”, consisting of development charges, parkland dedication rates and community benefit charges.

Development Charges (“DCs”)

Bill 23 implements both immediate and ongoing changes aimed at reducing DCs. Notable amendments to the Development Charges Act (the “DCA”) include:

          Limited Market Rental Housing Exemption

Bill 23 introduced a limited exemption for 1 new rental unit or 1% of the existing residential units (whichever is greater) in existing rental buildings containing four or more rental units. This exemption is not related to the unit being affordable, attainable or developed by a non-profit.

          Additional Low-Rise Unit Exemption

Bill 23 enacted a series of exemptions for new units in existing and new single detached, semi-detached and rowhouses up to a maximum of three total units, which align with the zoning changes discussed in Part 1 of this blog-series, permitting up to three units on a residential lot within those same building types.

          Affordable and Attainable Housing Exemption

On a date to be proclaimed by the Lieutenant Governor in Council, exemptions from DCs are provided for affordable housing where values will be below average, transactions are “arm’s length” and a specialized agreement is entered into. The Province has stated that it hopes this exemption will encourage the development of affordable residential units.

Attainable housing, which is expected to be defined through future regulation, will also be granted an exemption when a specialized agreement is entered into.

          Non-Profit Housing and Inclusionary Zoning Exemption

Inclusionary zoning mandated residential units as well as non-profit housing developments undertaken by certain types of non-profit housing organizations are now exempt from DCs. For non-profit housing, the exemption is retroactive to a limited extent in that future installment payments under s. 26.1 of the DCA will be cancelled.

          Discount for Purpose Built Rentals

A tiered discount has been enacted for DCs levied on “purpose-built rentals”, meaning a building or structure with four or more dwelling units all intended for use as residential rented premises. The larger the unit, the higher the discount, with a 15% discount for a 1-bedroom unit, 20% for a 2-bedroom unit and 25% for units with three or more bedrooms. This discount applies in addition to the applicable DC interest rate freeze.

          Discount on DCs and Expiry of By-laws

DC rates in a By-law enacted as of January 1, 2022 will now be phased in over a 5-year period. In year one, the maximum DC that could be charged would be discounted at 20%. This discount would decrease by 5% each year until year 5, where the full rates would apply. This is retroactive in the sense that DCs already imposed on development by a DC by-law passed on or after January 1, 2022 will still receive this 20% discount provided that the DCs were not payable before November 28, 2022.

          Longer By-law Review Interval

Before Bill 23, DC By-laws were reviewed by the imposing municipality every 5 years. Reviews are followed by new DC By-laws, which have led to steep DC increases in some jurisdictions in recent years. Now, this mandatory review period is 10 years. While municipalities are permitted to review DC by-laws on a more frequent basis, limiting reviews to once per 10 years allows municipalities to charge a non-discounted DC rate in years 5 through 10.

          DC Interest Rate

Bill 23 established a maximum interest rate, based on an average of prime rates published by five large Canadian banks, plus 1.0% adjusted quarterly.  This rate applies where DCs are paid by installment under s. 26.1 of the DCA and during the “freeze” period under s. 26.2.

          DC-Eligible Capital Costs

Minor reductions in the capital costs are also now recoverable through DCs. Bill 23 eliminated “housing services” and certain study costs from the list of DC eligible services. Additional eliminations are possible through regulation.

          Historic Level of Service from 10 to 15 years

Bill 23 changed the historical service level used to calculate capital costs eligible for recovery through DCs from the current 10 years to 15 years. This applies to the passage of all new DC by-laws, (with an exception for transit, which is currently excluded by the Province’s DC Regulation) and is expected to have a moderating effect on the maximum DC chargeable in a given service area.

          Increased Transparency in Use of DC Funds

Bill 23 requires municipalities to allocate or spend a minimum of 60% of their DC reserve balance on “priority services” (which will include water, wastewater and roads) at the start of each year. Additional priority services may be prescribed in the Regulations.

Parkland Dedication

To provide greater cost certainty and reduce expenses associated with development, Bill 23 also revised the parkland dedication requirements under the Planning Act including:

          Discounts on Affordable and Attainable Residential Units

On a date to be proclaimed by the LG, a new formula will be used to reduce the maximum amount of land dedication required where affordable or attainable units are provided, such that the maximum amount of land that can be required is reduced by a factor of the proportion of new dwellings excluding affordable and attainable units and the total number of dwellings proposed (i.e. non-affordable or attainable residential units / total residential units).

If the alternative (unit based) parkland rate is applied, affordable and attainable units do not contribute towards the unit count.

          Non-Profit Housing Exemption

Non-profit housing developments are now exempt from parkland contributions. Non-profit housing developments are proposed to be defined using the same definition as that introduced to the DCA through Bill 23.

          Low-Rise Additional Unit Exemption

Consistent with the changes to official plan policy and zoning by-laws to permit additional units in existing single detached, semi-detached and rowhouses, parkland contributions are no longer required for new units in those same building types up to a maximum of three units.

          Maximum Alternative Parkland Dedication

The maximum alternative dedication rate was reduced from a rate of 1 hectare per 300 dwelling units to 1 hectare per 600 net residential units. For cash-in-lieu, the rate was reduced from 1 hectare per 500 dwelling units to 1 hectare per 1000 net residential units. Notably, the definition of “dwelling units” was removed and “net residential units” will be determined by subtracting the existing residential units from the proposed residential units. This represents a 50% decrease from the current maximums.

          Determining Parkland Dedication Rates

Through Bill 23, parkland dedication rates will now be set at the time a site plan or zoning by-law amendment application is made. These provisions are modeled on the existing DC freeze provisions. A freeze on the applicable rates would remain in effect for up to two years following approval of the application, until building permits are obtained. The freeze period rates will become unavailable if building permits are not obtained within the allotted two years.

In addition, only new units and developments are now subject to parkland dedication requirements.

          Parkland Credits for Encumbered Land

On a date to be proclaimed by the LG, Bill 23 will amend the Planning Act to allow for “encumbered land” (i.e. land subject to an easement or having below grade infrastructure) and privately owned public spaces (“POPs”) to count towards parkland dedication requirements. Applicants will have increased control over the land they intend to convey parkland dedication.

          Appeal Regarding Parkland Characteristics

Also on a date to be proclaimed by the LG, a new appeal will be introduced to allow proponents to appeal the refusal of a municipality to accept the conveyance of land as proposed by the proponent within 20 days of notice being given.

          Requirements for Municipalities

Municipalities are now required to develop a parks plan prior to passing a new parkland dedication by-law in situations where the municipality plans to use the standard parkland dedication rate. The standard rate requires that the maximum land to be conveyed not exceed 2% for development or redevelopment for commercial or industrial purposes and 5% for all other types of development.

Municipalities are also be required to allocate or spend a minimum of 60% of their parkland reserve balance at the start of each year.

Community Benefits Charges (“CBCs”)

Bill 23’s amendments were introduced to provide increased clarity surrounding maximum CBC rates. Maximum rates are now based only on the value of new development, as opposed to total property values. To achieve this, a new formula was introduced that factors out the floor area of existing buildings and structures.

Similarly, on a day to be proclaimed by the LG, another new formula will become effective that factors out the floor area of “affordable residential units” or “attainable residential units” (as defined in accordance with the proposed regulation to be prescribed under DCA) from the valuation equation.

Inclusionary Zoning (“IZ”)

Amendments are proposed to Ontario Regulation 232/18: Inclusionary Zoning created under the Planning Act (the “Regulation”) that propose to establish an upper limit of 5% on the number of units that may be required to be set aside as affordable and a maximum affordability period of 25 years. Currently, the municipality has the discretion to set the limit as well as the period of affordability over which the affordable housing units would be required to remain affordable.

The Regulation is also proposed to prescribe the procedure to determine the lowest price or rent that can be required for IZ units, which is proposed to be 80% of the average resale purchase price of ownership units or 80% of the average market rent for rental units.

Affordable housing units in a development subject to IZ would also be subject to certain exemptions from DCs, parkland dedication requirements and CBCs.

Conclusion

For more information on Bill 23’s changes to Ontario’s planning regime, please visit Parts 1 to 6 of the blog-series.

If you wish to discuss how this implements your development or appeal rights, please do not hesitate to contact the team at Davies Howe LLP.

*Originally posted on October 28, 2022, updated on November 30, 2022.

On October 25, 2022, the Province introduced Bill 23, More Homes Built Faster, 2022, which received royal assent on November 28, 2022. The Bill was referred to the Standing Committee on Heritage, Infrastructure and Cultural Policy (the “Committee”) on October 31, 2022, and was subsequently amended. The below blog has been updated to reflect these amendments.

Bill 23 is the third installment in the Province’s Housing Supply Action Plan, following Bill 108, More Home for Everyone, 2019, and Bill 109, More Homes, More Choices, 2022.  Bill 23 introduces the most sweeping changes yet.

Bill 23 amended nine different statutes and introduced a new statute regarding the construction of servicing infrastructure in the Region of Durham and York. As many of these changes will have significant impacts on the land development process, this blog post constitutes Part 1 of Davies Howe LLP’s Bill 23 series. Part 1 focuses on the Province’s changes to the Planning Act (the “Act”) and provincial policy documents that are proposed to streamline planning approvals and increase the supply of housing. Below are some of the most significant highlights:

Removal of Third-Party Appeals

One of the most significant changes is the removal of third-party appeals of a decision on a minor variance or consent application. This is implemented by various amendments to the Act, the most obvious being the new definition of “specified persons”, which mirrors the definition that was used for appeals of draft plans of subdivision (introduced by Bill 108), and includes:

1. A corporation operating an electric utility in the local municipality;

2. Ontario Power Generation Inc.;

3. Hydro One Inc.;

4. A company operating a:
   1. natural gas utility;
   2. an oil or natural gas pipeline;
   3. a railway line; or
   4. a telecommunication infrastructure provider,

   provided the company is in the local municipality or planning area to which the relevant planning matter would apply; or

5. A person required to prepare a risk and safety management plan under Ontario Regulation 211/01 (Propane Storage and Handling) pursuant to the Technical Standards and Safety Act, with some additional requirements.

Previously, a person or public body had the right to appeal decisions regarding official plans, zoning by-laws, consents and minor variances, if the person or public body had made oral submissions at a public meeting or written submissions to the municipality before the respective decision was made. A “person” is not defined by the Act. While this right of appeal remains for decisions regarding official plans and zoning by-laws (note that Bill 23 originally proposed to remove all of these third-party appeal rights), for decisions on plans of subdivision, minor variance applications and consent applications, only the applicant, the municipality, the Minister and such “specified person” is permitted to appeal.

These amendments are retroactive in that a third-party appeal of a decision regarding a minor variance or consent application would be dismissed unless a hearing on the merits was scheduled before October 25, 2022. A hearing on the merits does not include dispute resolution processes or case management conferences. However, an adjournment or rescheduling of a previously scheduled hearing does not impact the third party’s appeal.

In addition to the elimination of third-party appeals, the changes introduced by Bill 139 to the Act and the Conservations Authorities Act that limit the appeal rights of conservation authorities will be re-enacted and effective on January 1, 2023.

Additional Residential Unit Permissions and Building Homes Near Transit

The Province intends to build 1.5 million new homes in ten years. One effort to increase the number of homes is to allow property owners to add new units within their existing homes. To facilitate this intention, various sections of the Act were amended to permit up to three residential units as-of-right. This means that one lot may contain three residential units, either all in the primary unit, or two in the primary unit and one in an ancillary unit. Notably, these new subsections only apply as-of-right to a “parcel of urban residential land”, which is defined as a parcel of land that is within a settlement area where  residential use is permitted by by-law and that is served by full municipal water and sewage services. The amendments do not permit an official plan or zoning by-law to require the provision of more than one parking space or to prescribe a minimum floor area of the residential units. These units must still be compliant with the building code and municipal by-laws. However, they are exempt from development charges and parkland dedication fees (see Part 2 for more information on development charges and parkland fees).

In addition, existing and future official plan policies, zoning by-laws and ministerial zoning order provisions that do not permit three residential units on a parcel of urban residential land, regulate a minimum floor area of a residential unit or require more than one parking space per residential unit are of no effect as of November 28, 2022.

Additional subsections were also added that require municipalities to update their zoning by-laws to conform with official plan policies regarding major transit station areas within one year of the policies coming into effect. The Province has indicated that the purpose of these new subsections is so that transit-supportive densities will be permitted in the zoning by-law as-of-right. If a municipality does not update its zoning within one year, an appeal may be filed regarding these policies, notwithstanding that appeals of zoning by-laws related to protected major transit station areas are otherwise not permitted, except in narrow circumstances.

Removal of Powers from Upper-Tiers

On a date to be proclaimed by the Lieutenant Governor in Council (“LG”) amendments to the Act provide for two different classes of upper-tier municipalities: those which have planning responsibilities and those which do not. Various amendments were made to provide lower-tier municipalities with planning functions when they form part of an upper-tier municipality that is designated as being without planning responsibilities. This removes planning policy and approval responsibilities from certain upper-tier municipalities who currently possess these responsibilities, including the rights to appeal decisions regarding official plans, zoning by-laws, minor variances, draft plans of subdivision and consents. Accordingly, the Minister of Municipal Affairs and Housing (the “Minister”) would become the approval authority for these lower tier official plans and official plan amendments. The Minister’s decision is not subject to appeal.

While the LG may prescribe upper-tier municipalities without planning responsibilities by regulation, Bill 23 has initially included the County of Simcoe as well as the Regions of Durham, Halton, Niagara, Peel, Waterloo and York.

Other Streamlining Proposals: Site Plan Control, Public Meetings, Rental Replacement and Provincial Policy Documents

Various amendments were passed to the City of Toronto Act, 2006 (“COTA”) and the Act with respect to site plan control areas. In particular, matters relating to exterior design, which currently include the character, scale, appearance and design features of buildings, are proposed to be excluded from site plan control. However, matters relating to building construction required by a by-law under specified sections of the Municipal Act and the COTA, including green roofs, alternative roof services or other environmental standards in the construction of buildings, are still permitted to be controlled by site plan. Further, while the appearance of elements, facilities and works on the land under a municipality’s jurisdiction are not subject to site plan control, there is an exception where the appearance impacts matters of health, safety, accessibility, sustainable design or the protection of adjoining lands. Essentially, exterior design is no longer subject to site plan control except for environmental exterior design features.

Residential development of 10 units or less is also excluded from site plan control, except for the development of land lease communities.

Previously, the Act required a public meeting to be held on plan of subdivision applications. Bill 23 removed this public meeting requirement.

On a day to be proclaimed by the LG, section 23 of the Act will provide the Minister with more authority to amend official plans if they are of the opinion that the plan is likely to adversely affect a matter of provincial interest. Currently, the Minister may amend official plans if the provincial interest is set out in a policy statement issued under subsection 3(1). They are also required to advise council about the issue and provide council with the opportunity to resolve it before amending the plan by order. However, these requirements will be removed. In addition, Bill 23 removes the possibility of the Minister to request that the Ontario Land Tribunal hold a hearing on a proposed amendment to resolve such matter of provincial interest.

Both the COTA and the Municipal Act were amended to authorize the Minister to enact regulations related to the replacement of rental housing and when it is proposed to be demolished or converted. Municipalities may enact by-laws to regulate rental housing replacement. Now, the Minister could use this authority to limit the powers of a local municipality to regulate the demolition and conversion of residential rental properties. This is particularly relevant in the cities of Toronto and Mississauga, where these by-laws already exist.

The Province is also proposing multiple policy document changes, the most significant being the integration of A Place to Grow: Growth Plan for the Greater Golden Horseshoe and the Provincial Policy Statement into one province-wide planning policy instrument. The proposal is posted here, and the comment period closes on December 30, 2022. The Province is seeking input on how to enable municipalities to approve housing faster and increase housing supply. It proposes to discuss the following core elements:

1. Residential land supply;
2. Attainable housing supply mix;
3. Growth management;
4. Environment and Natural Resources;
5. Community infrastructure; and
6. Streamlined planning framework.

Conclusion

For more information on Bill 23’s changes to Ontario’s planning regime, please visit Parts 2 to 6 of the blog-series.

If you wish to discuss how this implements your development or appeal rights, please do not hesitate to contact the team at Davies Howe LLP.

What is the Ontario Line?

The Ontario Line is a proposed expansion of the transit infrastructure in the GTA that will run through the heart of downtown Toronto, connecting Exhibition Place in the south-west to the Ontario Science Centre in the north-east. The 15.6-kilometre, 15-stop subway line will connect to the Yonge-University Spadina Line (Line 1) and the Bloor Line (Line 2), GO Train lines and the Eglinton Crosstown LRT, forming an integrated transit network that proposes to make getting around the city and surrounding area easier and more intuitive.

How does this affect me?
Metrolinx has determined that it needs to acquire 906 properties to support the construction of the Ontario Line. Some properties will only be needed temporarily, while others will be acquired permanently. In some cases, only parts of the properties will be needed, while the entirety of others will be needed. In some cases, only an underground interest will be needed.
By now, Metrolinx or a representative has reached out to owners of every property it proposes to acquire – and their tenants, where possible – to advise of its plans and determine next steps. If yours is one of those properties, you have options.

What are the implications?

First, the bad news: The Expropriations Act (the “Act”) allows an expropriating authority – in this case, Metrolinx – to acquire land required for a public work or other public purpose without the consent of the person whose property or interest in the property is being acquired. The process by which Metrolinx may legally acquire these properties is governed by the Act and there is no effective mechanism for property owners to fight the expropriation.

There is a silver lining: The Act provides that an expropriating authority must pay the owner the fair market value based on the highest and best use of the land that it intends to expropriate. When making its offer, Metrolinx must serve an appraisal report, setting out the basis for its valuation. Metrolinx must also reimburse the reasonable costs incurred by a landowner as a result of the expropriation.

What are my options?

Despite the mandatory nature of the expropriation process, you are not obligated to accept the first offer Metrolinx makes for your property.

Davies Howe LLP has recovered millions of dollars in additional compensation for affected landowners and tenants throughout Ontario and the GTA for this and other projects.

If you have received an offer of compensation from Metrolinx or any other expropriating authority and would like to better understand your rights, contact Ava Kanner at 416.977.7088 extension 243 or by email at ava@davieshowe.com.

On April 14, 2022, Bill 109, the More Homes for Everyone Act, 2022, received royal assent, just two weeks after it was introduced by the provincial government on March 30, 2022. As such, we have provided an updated analysis below.

Planning Act Changes

Notable amendments to the Planning Act include:

• Requiring municipalities to provide refunds for zoning by-law amendment and site plan application fees where no decision is made during the statutory timeframe;

• The introduction of a new ministerial zoning tool, referred to by the Minister as the Community Infrastructure and Housing Accelerator (“CIHA”);

• An established review process for community benefit charge (“CBC”) by-laws;

• Amendments to parkland requirements on lands designated as Transit-Oriented Communities (“TOC”);

• Empowering the Minister with new powers regarding certain official plan amendments (“OPAs”) and new official plans; and

• Empowering the Minister to make regulations for the use of surety bonds as security for conditions imposed by a municipality on planning approvals.

Each change is discussed further below.

          Application Fee Refunds

Changes to the approval process for zoning by-law amendment and site plan applications will require municipalities to refund application fees if a decision is not made within the legislative timelines.  Refunds will be calculated on a graduated basis (i.e. 50%, 75% or 100%) depending on the number of days following the application. This change will apply to applications made on or after January 1, 2023.

The stated intent of this change is to expedite the approval process by facilitating faster decisions on applications.

         Site Plan Control

Changes to both the Planning Act and the City of Toronto Act, 2006 will require municipal councils to delegate site plan control decisions to staff (i.e. an officer, employee or agent of the municipality). This will apply to all applications received on or after July 1, 2022.

Bill 109 also extended the site plan application review timeline from 30 days to 60 days. This means that an applicant can only appeal a municipality’s failure to approve their site plan application to the Ontario Land Tribunal (the “Tribunal”) beginning 60 days after the application was submitted, rather than 30 days.

Lastly, the changes establish complete application requirements for site plan applications, similar to current complete application requirements for other types of applications under the Planning Act, with recourse if the application has not been deemed complete within 30 days of acceptance by the municipality.

         Plans of Subdivision

Bill 109 permits the establishment of a regulation-making authority to determine what cannot be required as a condition of draft plan approval. These requirements will be prescribed by a regulation made under the Planning Act, which has not been released yet.

In addition, the changes permit an approval authority to allow municipalities to reinstate draft plans of subdivision that have lapsed within the past five years without a new application. This exemption does not apply where the approval has previously been deemed not to lapse using this provision of the Planning Act, and if there is an agreement entered into for the sale of the land by a description in accordance with the draft approved plan of subdivision. If the draft plan of subdivision is deemed not to have lapsed, the approval authority shall specify a time when the approval lapses.

            Community Infrastructure and Housing Accelerator

A new section to the Planning Act was added, which creates an additional type of Minister’s order notwithstanding that the Ministerial Zoning Order (“MZO”) under s. 47 of the Planning Act still exists. The Minister has indicated that the s. 47 MZOs will instead be reserved for provincially significant infrastructure projects like the TOC program.

The CIHA tool permits the Minister to make a zoning order at the request of the municipality, by Council resolution.

The Council’s resolution must:

• Identify the lands to which the order will apply; and

• Identify the manner the municipality’s powers will be exercised with respect to the lands.

The inclusion of a draft by-law in the resolution is deemed to satisfy these requirements. However, before passing such a resolution, the municipality must give notice to the public and consult with persons, public bodies and communities as the municipality considers appropriate. Within 15 days after Council passes the resolution, the municipality shall forward the resolution to the Minister, where it may make an order under s. 34 of the Planning Act or by way of a development permit by-law.

An order may not be made in respect of any land in the Greenbelt area. However, the order does not have to be consistent with the Provincial Policy Statement, 2020, nor does it have to conform, or not conflict, as the case may be, with provincial plans or official plans.

The Minister may also impose conditions on such an order, and the order prevails in the event of a conflict with other by-laws passed under s. 34 of the Planning Act.

Finally, before an order is issued, the Minister must establish guidelines respecting orders and publish the guidelines on a Government Website. Draft Guidelines were posted on March 30, 2022.

Currently, the Draft Guidelines indicate:

• Where CIHAs cannot be used (e. the Greenbelt);

• That CIHAs can be used to regulate the use of land and the location, height, size and spacing of buildings and structures to permit certain types of development; and

• That the Minister may make CIHAs to expedite certain developments, including planning approvals that support the quality of life for people and communities, any type of housing (particularly community housing, affordable housing and market-based housing), buildings that would facilitate employment and economic development and mixed-use developments.

           CBC By-law Reviews

New subsections are proposed to the Planning Act, as well as the provincial regulation O. Reg. 509/20 regarding CBCs and Parkland, that increase the existing municipal reporting requirements. Municipalities that pass a CBC By-law will be required to undertake and complete a review of the by-law at least once every five years. The review will include public consultation.

            Parkland Requirements for TOCs

The amendments implement a maximum and tiered alternative parkland dedication rate for municipal parkland in areas designated by the Minister of Transportation as TOC land under the Transit-Oriented Communities Act, 2020 (i.e. development projects that are connected with the construction of a station that is part of a defined priority transit project). The rate is based on a percentage of the development land or its value (10% on sites 5 hectares or less, and 15% on sites more than 5 hectares).

The changes also provide the Minister of Infrastructure with authority to identify encumbered land at TOC development sites that could be conveyed to a municipality as parkland.

Ministerial Powers Regarding Official Plan Approvals

The changes give the Minister new discretionary authority when making decisions on certain OPAs, or new official plans. The Minister is permitted to refer these matters to the Tribunal for a recommendation on whether the Minister should approve or modify the OPA or new official plan, or for a final decision.  In either instance, the Tribunal may hold a hearing before making its recommendation or rendering its decision. If an Official Plan was submitted to the Minister for approval prior to April 14, 2022, and no decision respecting the Plan has been made, the Minister may still refer all or parts of the plan to the Tribunal for recommendation or a decision.

The changes also allow the Minister to suspend the time period in which to decide on all official plan matters subject to Minister’s approval (with transition for matters that are currently before the Minister).

            Regulation-Making Authority for the Use of Surety Bonds

Lastly, another new section was added to the Planning Act that, once in force, will permit the Minister to make regulations prescribing and defining surety bonds and other prescribed instruments. Such instruments will authorize landowners and applicants to stipulate the type of surety bond (or other prescribed instrument) to secure obligations imposed by the municipality in connection with land use planning approvals. This new section will come into force on a day to be named by proclamation of the Lieutenant Governor.

Increased Funding to the Ontario Land Tribunal and the Landlord and Tenant Board

While not a result of a legislative amendment, the province has also announced that it will provide $19 million in funding over three years to the Tribunal and the Landlord and Tenant Board. This was a key recommendation in the Housing Affordability Task Force Report, and according to the province, the extra funding will support faster case resolution by increasing the number of adjudicators, mediators and case coordinators as well as by improving access to online services.

Conclusion

Bill 109 is purported to be the province’s first step in implementing the Ontario Housing Affordability Task Force’s report recommendations. Davies Howe LLP will continue to monitor how these changes unfold at a practical level.

On March 30, 2022, the provincial government introduced Bill 109, the More Homes for Everyone Act, 2022. Bill 109 proposes several amendments to existing legislation, including the Planning Act, the Development Charges Act, 1997, the City of Toronto Act, 2006, the New Home Construction Licensing Act, 2017 and the Ontario New Home Warranties Plan Act.

As is evident from its title, the Minister of Municipal Affairs and Housing (the “Minister”) has indicated that the purpose of Bill 109 is to increase housing supply and choice for families and individuals across the province. According to the government, Bill 109 is an attempt to implement some of the Housing Affordability Task Force’s recommendations, outlined in a report released in February this year.

Planning Act Changes

Notable amendments proposed to the Planning Act include:

• Requiring municipalities to provide refunds for zoning by-law amendment and site plan application fees where no decision is made during the statutory timeframe;

• The introduction of a new ministerial zoning tool – referred to by the Minister as the Community Infrastructure and Housing Accelerator (“CIHA”);

• An established review process for community benefit charge (“CBC”) by-laws;

• Amendments to parkland requirements on lands designated as Transit-Oriented Communities (“TOC”);

• Empowering the Minister with new powers regarding certain official plan amendments (“OPAs”) and new official plans; and

• Empowering the Minister to make regulations for the use of surety bonds as security for conditions imposed by a municipality on planning approvals.

Each proposed change is discussed further below.

Application Fee Refunds

The proposed changes to the approval process for zoning by-law amendment and site plan applications would require municipalities to refund application fees on a graduated basis (i.e. 50%, 75% or 100% depending on the number of days following the application) if a decision is not made within the legislative timelines.  This change would apply to applications made on or after January 1, 2023.

The stated intent of this change is to “incentivize municipalities to make timely decisions”.

Site Plan Control

Changes are proposed to both the Planning Act and the City of Toronto Act, 2006 that would require municipal councils to delegate site plan control decisions to staff (i.e. an officer, employee or agent of the municipality). This would apply to all applications received after July 1, 2022.

The proposed changes would also extend the site plan application review timeline from 30 days to 60 days. This means that an applicant can only appeal a municipality’s failure to approve their site plan application to the Ontario Land Tribunal (the “Tribunal”) beginning 60 days after the application was submitted (rather than 30 days).

Last, changes propose to establish complete application requirements for site plan applications, similar to current complete application requirements for other types of applications under the Planning Act, with recourse if the application has not been deemed complete within 30 days of acceptance by the municipality.

Plans of Subdivision

The proposed changes would establish a regulation-making authority to determine what cannot be required as a condition of draft plan approval.

In addition, the changes propose to establish a discretionary authority to allow municipalities to reinstate draft plans of subdivision that have lapsed within the past five years without a new application (provided no agreement had been entered into for the sale of any land by a description in accordance with the draft approved plan of subdivision).

          CIHAs

A new section to the Planning Act is proposed to be added, which would create an additional type of Minister’s order notwithstanding that the Ministerial Zoning Order (“MZO”) under s. 47 of the Planning Act still exists. The Minister has indicated that the s. 47 MZOs will instead be reserved for provincially significant infrastructure projects like the TOC program.

The proposed CIHA tool would permit the Minister to make a zoning order at the request of the municipality, by council resolution.

The Council’s resolution must:

• Identify the lands to which the order would apply; and

• Identify the manner the municipality’s powers would be exercised with respect to the lands.

The inclusion of a draft by-law in the resolution would be deemed to satisfy these requirements. However, before passing such a resolution, the municipality must give notice to the public and consult with persons, public bodies and communities as the municipality considers appropriate. Within 15 days after Council passes the resolution, the municipality shall forward the resolution to the Minister, where it may make an order under s. 34 of the Planning Act or by way of a development permit by-law.

An order may not be made in respect of any land in the Greenbelt area. However, the order does not have to be consistent with the Provincial Policy Statement, 2020 nor does it have to conform, or not conflict, as the case may be, with provincial plans or official plans.

The Minister may also impose conditions on such an order, and it would prevail in the event of a conflict with other by-laws passed under s. 34 of the Planning Act.

Finally, before an order is issued, the Minister must establish guidelines respecting orders and publish the guidelines on a Government Website.

CBC By-law Reviews

New subsections are proposed to the Planning Act, as well as the provincial regulation O. Reg. 509/20 regarding CBCs and Parkland, that would increase the existing municipal reporting requirements. If passed, municipalities with a CBC By-law will be required to undertake and complete a review of the By-law at least once every five years. The review will include public consultation.

          Parkland Requirements for TOCs

The proposed amendments would implement a maximum and tiered alternative parkland dedication rate for municipal parkland in areas designated as TOC land under the Transit-Oriented Communities Act, 2020. The rate is proposed to be based on a percentage of the development land or its value (10% on sites 5 ha or less, and 15% on sites more than 5 ha).

The proposed changes would also provide the Minister of Infrastructure with authority to identify encumbered land at TOC development sites that could be conveyed to a municipality as parkland.

Ministerial Powers Regarding Official Plan Approvals

The proposed changes would give the Minister new discretionary authority when making decisions on certain OPAs, or new official plans. The Minister would be permitted to refer these matters to the Tribunal for a recommendation on whether the Minister should approve or modify the OPA or new official plan, or for a final decision.  In either instance, the Tribunal would be able to hold a hearing before making its recommendation or rendering its decision.

The changes would also allow the Minister to suspend the time period in which to decide on all official plan matters subject to Minister’s approval (with transition for matters that are currently before the Minister).

          Regulation-Making Authority for the Use of Surety Bonds

Last, another new section proposed to be added to the Planning Act would permit the Minister to make regulations prescribing and defining surety bonds (and other prescribed instruments). Such instruments would authorize landowners and applicants to stipulate the type of surety bond (or other prescribed instrument) to secure obligations imposed by the municipality in connection with land use planning approvals.

Increased Funding to the Ontario Land Tribunal and the Landlord and Tenant Board

While not a result of a legislative amendment, the Province has also announced that it will provide $19 million in funding over three years to the Tribunal and the Landlord and Tenant Board. This was a key recommendation in the Housing Affordability Task Force Report, and according to the Province, the extra funding will support faster case resolution by increasing the number of adjudicators, mediators and case coordinators as well as by improving access to online services.

Legislative Process

Bill 109 has now passed its second reading and is currently being considered by the Standing Committee. It is proceeding through the legislative process quickly, thus we will continue to provide updates as we monitor its status.

On February 15, 2022, the City of Toronto (the “City”) Planning and Housing Committee (the “Committee”) received a Staff Report outlining the consultation findings and concept design for a New Centralized Affordable Housing Access System (the “Report”). This Report provides details on actions taken to-date by City staff; comments from public consultations; and a concept design for the new access system. A final report is estimated to be provided to the Committee in Q2 of 2022, and subject to Council approval, it is anticipated that the new affordable housing access system will be launched in 2023.

Background

In December 2019, City Council adopted the HousingTO 2020-2030 Action Plan (the “Housing Plan”) in an effort to develop and implement various policy initiatives to increase the supply of affordable housing in the City.  The Housing Plan aims to approve 40,000 new affordable rental homes, including 18,000 supportive housing units by 2030.

To achieve this objective, the Housing Plan recommends that the City develop a new centralized access system to improve the allocation of the new affordable rental units.  In April 2021, the Committee directed City staff to consult with stakeholders and create a concept design for a new centralized access system (Item PH22.10).  The results are presented in the Report.

The Conceptual Design

After a three-phase consultation process with various stakeholders, City staff developed a conceptual design for the centralized access system.  The key components of the concept design framework are:

1. One-Window Approach: instead of housing providers advertising units through their own mediums, the new centralized system will consolidate City-administered affordable housing options into a single system. Applicants will create one account that can be used for both the social housing waitlist and affordable housing applications.  The One-Window will also include tenant support resources, education and programs.  

2. Transparency and Consistency: by consolidating affordable housing projects under one system, the City can standardize the processes across the different programs and housing options. This design also contemplates automated communication features, where applicants will be notified when a unit is filled, regardless of whether they were selected for the unit.  The standardization of the process allows the City to monitor whether units are being filled in accordance with City rules, with the hopes of achieving increased accountability.
3. Simple and Accessible: the new centralized system will be user-friendly and easy to navigate. The conceptual design contemplates several features including the ability to search and filter units; applying for multiple units using one profile; an “eligibility calculator” which will calculate whether the applicants are eligible for that housing; the ability of upload required documents using the camera feature on mobile devices; and options to receive notifications by e-mail, phone or text message.
4. Operational Efficiencies: the new centralized system will streamline administration by the City and automate the tenant selection processes. The use of technology will enable housing providers to fill vacancies sooner.
5. Fair and Equitable Allocation of Units: the new centralized system contemplates several allocation methods (g., a randomized draw process, referral agreements, or prioritization of specified groups) to advance the equitable outcomes for affordable housing.

Interim Strategies and Actions

City staff also identified measures to simplify the process for finding affordable housing in the interim.  These measures include:

• Raising public awareness of the City’s new e-mail list serve that notifies subscribers of new affordable housing opportunities as they become available;
• Updating the City’s Finding Housing website; and
• Developing public education materials to explain the differences between affordable and subsidized housing.

Next Steps

City staff continue to engage in consultations with various groups of stakeholders on the design of the centralized access system to further consolidate and simplify affordable housing agreements and administrative procedures.

As discussed above, a final report is estimated to be presented to the Committee in the second quarter of 2022, which will include a procurement plan, resource requirements and the overall financial impact on the City.

The centralized access system is expected to launch in 2023, subject to Council approval.

The Davies Howe LLP team will continue to monitor this program’s progress, and would be happy to answer questions you have regarding the new centralized access system.

With the year coming to an end, the City of Toronto (the “City”) staff have been busy preparing programs, initiatives, and reports which are scheduled to go to City Council before 2022, including the Review of Parking Requirements for New Development. Our previous blog posts covered an Overview and Timeline of the Review, as well as an Update on the public meetings that took place in June. The City has now finished its public consultations and has provided a Recommendation Report and a Draft Zoning By-law Amendment to the City’s Zoning By-law 569-2013 (the “By-law”) for Automobile Standards. The recommendations are outlined below.

Future Visions and Current Trends

As outlined in our first post about the Review, the City is looking to establish parking maximums instead of minimums for new development. This decision is influenced by the need to prioritize sustainable and space efficient modes of transportation in light of the current climate challenges as directed by the Official Plan.  The Transportation Tomorrow Survey showed that more apartment households are choosing to become car-free and that 46% of recently approved projects have parking levels below the minimums. The cost of construction for an underground parking space can cost as much as $160,000. With these trends in mind, City staff are becoming more supportive of applications that provide less parking than what is required and are attempting to reduce parking requirements further.

Draft Proposal

City staff have proposed changes to the By-law, including changes to:

• Policy Areas and Parking Zones;
• Land Use Categories;
• Auto Parking Rates;
• Accessible Parking Rates;
• Electronic Vehicle Supply Equipment (“EVSE”);
• Bicycle Parking;
• Payment-in-Lieu of Bicycle Parking;
• Transition Requirements; and
• Parking Supply Guidelines for City Developments.

Land Use Categories
The City is proposing to simplify the By-law by grouping together similar land uses to reduce the amount of land use categories from 90 existing land uses to approximately ten (10) categories.

To facilitate the introduction of parking maximums rather than minimums, the City proposes to maintain existing maximums where they exist, and introduce new maximums by land use group. Non-residential land use groups will be grouped into different “Tiers”, and parking rates will generally be determined based on which Parking Zone each new Land Use “Tier” is located in.

Development proposals that exceed the maximum permitted parking rate will require a zoning by-law amendment that is supported by parking studies and would be encouraged to provide additional travel demand management measures to offset the expected increase in driving.

Residential parking maximums will also be determined according to the respective Parking Zone, however, dwelling units in the following housing types are not subject to parking maximums:

• Detached house;
• Semi-detached house;
• Townhouse;
• Duplex, triplex, fourplex; and
• Secondary suites.

Policy Areas and Parking Zones
The proposed Parking Zones will be separate from the Policy Areas currently found in the By-law and are only applicable to maximum parking standards. There are two new Parking Zones proposed:

• Parking Zone Area A has the most restrictive parking maximums in the City and applies to lands within 400 metres of frequent higher-order transit. It generally includes lands within Policy Areas 1, 2, and 3.

• Parking Zone Area B has less strict parking maximums and applies to lands within 100 metres of frequent surface transit. It generally includes lands within Policy Area 4.

• The “Rest of the City” that is not captured within Parking Zone A or B will be subject to the least restrictive parking maximums.

A Parking Zones overlay map is being recommended by staff which will outline the Parking Zone boundaries in more detail. These boundaries will be subject to future revisions as necessary, associated with the adoption of Major Transit Station Areas.

Visitor and Accessible Parking
Minimum requirements will still be established for visitor and accessible parking and requirements for accessible parking will be separate from other parking requirements. A new method for calculating the minimum required number of accessible spaces is also proposed by staff which is expected to increase the total number of accessible parking spaces required.

Electric Vehicle Supply Equipment
The City is recommending a requirement that all parking spaces for residents in a development be “EV ready” and that 25% of all other non-resident parking spaces in the development be EV ready, to reduce retrofitting costs down the line. To be considered EV ready, the parking space must be equipped with an adjacent energized outlet capable of providing Level 2 charging or higher. The City will work with the Province and Toronto Hydro to determine how to limit the burden on developers when installing EVSE.

Bicycle Parking Rates
To continue reducing dependency on automobiles, the City is proposing to double the short-term bicycle requirements for residential uses in Bicycle Zone 1, from 0.1/unit to 0.2/unit. The By-law defines this area as “the area of the City bounded by the Humber River on the west, Lawrence Ave on the north, Victoria Park Ave on the east and Lake Ontario on the south” and it will not be undergoing a boundary adjustment.

Infrastructure to Support Low Parking Rates
A payment-in-lieu of bicycle parking will allow developers to reduce short-term bicycle parking requirements within Bicycle Zone 1 up to 50%. The City is recommending a rate of $500 per short-term space, and that the collected fees go to the reserve fund for the Toronto Parking Authority to expand the Bike Share program. A requirement for a bicycle maintenance station is also being recommended for developments with more than five long-term bicycle parking spaces.

Next Steps

While the City is looking for ways to reduce automobile parking and encourage alternative modes of transportation, there will be no reduction to existing lawful parking. However, the on-street parking permit program will not apply to new developments and instead, the City proposes to monitor the existing parking and other parking requirements through a monitoring program.

Future work will include:

• Review of the By-law’s loading space requirements, Guidelines for the Design and Management of Bicycle Parking Facilities, and bicycle parking standards; and

• Development of Transportation Demand Management Guidelines that support the review of Toronto Green Standard Single-Occupant Vehicles reduction targets and review of applications to exceed new parking maximums.

Further recommendations based on the Parking Review will be presented to Council in 2023.

Should you have any questions about the Parking Review and how it will affect your development, the lawyers at Davies Howe will be happy to assist you.

Since our last updates on the City of Toronto’s (the “City”) Concept 2 Keys (“C2K”) program in May and June, the City is now transitioning parts of the C2K pilot program into a permanent service, including the affordable housing priority application function and the online Application Submission Tool (“AST”). Details of these updates are outlined further below.

Overview
Since its timely creation in March 2020 amidst the start of the pandemic, the C2K program has attempted to streamline the City’s planning and development review, from pre-application consultation to occupancy, by changing its organizational structure, processes and technology.

The C2K program introduces new factors to the development review process, including the new AST; an expansion of the intake portal; and creating dedicated application review teams with members from various City divisions to streamline the application process.

Since January 2021, the City has now introduced two new application review streams: the Priority Application Stream (the “Priority Stream”) and the District Application Stream (the “District Stream”). On November 9, 2021, City Council directed the City Manager to start transitioning the Priority Stream to a permanent service and to report back to Council in Q1 2022 to expand the Priority Stream further. Council’s decision is found here.

1. The Priority Stream

The Priority Stream identifies and evaluates high-priority affordable housing applications based on the following criteria:

• Number of affordable units (at or below Average Market Rent as defined annually);
• Depth of affordability;
• Length of affordability;
• Number of affordable units that will be allocated to priority populations (identified in the HousingTO 2030-30 Action Plan); and
• Projects with government investment in the form of land or approved capital or operating funding.

Under the Priority Stream, City staff attempt to minimize delay by maintaining a tightly coordinated schedule, jointly resolving interdivisional issues and minimizing file load to improve application wait times for review. This process has permitted an expeditated review of high-priority affordable housing developments, averaging around 3-6 weeks, compared to the 8-9 weeks required for most other development applications across the City. For example, the first C2K application submitted since the review teams were formed was the Thunder Woman Healing Lodge Society development, which has now received its Notice of Approval Conditions six months after the application was first submitted.

The City hopes to increase the scope of the Priority Stream to include, among other things, development related permits and approvals.

2. The District Stream

The District Stream is being used to test the scalability of development review improvements across a range of application types in a typical review environment. Unlike the Priority Stream, the teams in the District Stream have a regular intake capacity and carry a typical file workload. Currently, it is being tested in the Etobicoke-York District to eventually standardize its processes in other areas of the City.

To date, the Etobicoke-York District has three interdivisional application review teams, one in each sub-district (North, South and Central), consisting of application reviewers from City Planning; Engineering & Construction Services; Transportation Services; Parks, Forestry and Recreation; and the C2K Office, all to ensure review teams have the appropriate resources in place to review applications efficiently. Each interdivisional review team also has an extended review team from other City divisions, including Solid Waste Management Services, Legal Services and Toronto Building. The interdivisional review teams are an attempt to enhance collaboration, development consistency and increase transparency. Although the interdivisional team structure is integral to the collaborative review approach, City Planning remains the sole department to make recommendations to City Council and make decisions within its delegated authority.

Review Process Changes
Also as part of the C2K program, and after 6 months of testing, the City has now indicated that its online AST will be available for all development applicants to use beginning December 6, 2021. The AST digitizes the applicant submission process and attempts to make it more user-friendly. While the tool is not widespread in its application yet, early reviews from applicants have been positive and staff will continue to work on refinements.

Further, a file circulation platform is being tested to streamline application submissions, improve internal review processes and enhance transparency. The platform is to be integrated with the Integrated Business Management Systems and the Application Information Centre to enable more efficient collaboration between City staff and applicants. The City will request proposals for the platform in Q4 2021, and select a vendor in Q1 2022. The City hopes to implement the new platform by the end of 2022.

Finally, an online mapping and analysis tool will be tested by planning staff to understand the feasibility of using it as part of the development review. The tool would allow staff to efficiently locate land parcels; create three-dimensional building renderings; and evaluate the development potential of any given property in the city. An initial data review of the pilot is anticipated in Q4 2021 and results will be provided in the next quarterly report.

Issues Resolution
An Issues Resolution function was launched in Q2 2021 on the City’s website to address application-specific concerns, enhancing customer service and identifying additional opportunities for improvement to the development review process. Upon reporting an issue, you will receive confirmation that your request has been received within 24 hours, and it is expected to be resolved or escalated for resolution within 10 business days. Relationship and issues coordinators support this function and will be the first point of contact for understanding the current status of applications, providing updates to applicants and escalating issues that are complex or systemic in nature.

Development Fee Review
In February 2021, City Council directed staff to undertake a review of the current activity-based costing development application fee model. This review, which is currently underway, intends to improve the City’s existing fee structures to recover the costs of service, including, the processing efforts of staff, internal and external support functions and capital replacement costs. Staff will bring forward a report to Council in Q1 2022.

Conclusions
C2K staff will continue to provide updates to the Planning and Housing Committee on a quarterly basis and Davies Howe will be here to assist you with navigating these new changes.