The Ontario provincial government has introduced new legislation in the form of the More Homes Built Faster Act (Bill 23) to support Ontario's newest Housing Supply Action Plan. Bill 23 is intended to provide the groundwork to increase the housing supply and affordable housing options for Ontarians by getting 1.5 million homes built over the next 10 years. It boldly does so in a number of very significant and controversial ways.

The highlights the Bill 23 include:

The Planning Act

The most significant changes to the Planning Act will limit/extinguish the appeal rights of third parties, including upper-tier municipalities which are not approval authorities for official plan amendments. Whereas at present persons or public bodies who participate in the planning approvals process enjoy a right of appeal with respect to a zoning by-law, official plan, consents, and minor variances Bill 23 would restrict such rights of appeals to public bodies and "specified persons" (public utilities, operators of railway lines, and telecommunications providers).

This change, clearly aimed at preventing NIMBY appeals, will be huge for neighbours and residents' associations. It will be interesting to see if this will lead to increasing pressure on municipalities to participate in appeals of development applications which face neighbourhood opposition.

This could have a significant impact on the caseloads of the Ontario Land Tribunal (OLT) and the Toronto Local Appeal Body. It should also increase the significance of local Committees of Adjustment as they may now be the only opportunity to oppose a project.

Importantly this provision has retroactive effect and will nullify appeals where a hearing on the merits has not been scheduled before October 25, 2022.

Bill 23 contains other consequential changes including:

  1. exempting pits and quarries from the two-year moratorium on applications to amend official plans or zoning by-laws. This is a huge, hard-fought, win for the industry;
  2. allowing the Minister of Municipal Affairs and Housing to make amendments to official plans where the Minister is of the opinion that a plan will adversely affect a matter of provincial interest;
  3. allowing up to three residential units in a house to be permitted "as of right";
  4. revising the formula (recently introduced by this same government) for determining the amount of a community benefit charge (formerly known as a section 37 benefit) that may be imposed by a municipality on new developments. Municipalities will now have to revise their recently passed section 37 by-laws to incorporate this cap on benefits chargeable to developers;
  5. making changes to the provisions of section 41 to exempt residential development of up to 10 units and a land lease community home from site plan control. Exterior design is also removed as an element of site plan drawings. Given the degree to which some smaller municipalities rely on site plan control as a way of regulating specific development this could represent a significant change;
  6. revising parkland dedication requirements by removing that requirement for non-profit housing and the development of up to three residential units in a house. Moreover the timing of the calculation and the calculation of the maximum rate (alternative rate/hectare and the cash-in-lieu) will be changed in ways that lessen the ask from municipalities. Bill 23 will also permit owners to propose portions of their land, including encumbered lands, for parkland conveyance as opposed to having to rely on the determination of the local municipality. It will also force municipalities to spend at least 60% of monies collected for parkland purposes at the beginning of each year; and
  7. amending section 51 by removing the requirement for a public meeting on subdivision applications.

Conservation Authorities Act

Bill 23 proposes to amend the Conservation Authorities Act to greatly reduce the ability of Conservation Authorities to regulate development activity by removing their ability to comment on development applications and to require permits for projects approved under the Planning Act. Moreover, the Minister will have greater powers to make exceptions for development applications.

Development Charges Act, 1997

Bill 23 proposes to make various amendments to the Development Charges Act, 1997. New sections are added to fully exempt affordable residential units, non-profit housing developments, and inclusionary zoning residential units from development charges. The Development Charges Act would also be amended to require a reduction in the maximum development charge that could otherwise be charged for the first four years a development charge by-law is in force. These reductions would be applicable to development charges imposed pursuant to development charge by-laws passed on or after June 1, 2022.

Under Bill 23, rental housing development charges would be reduced for residential units intended for use as rented residential premises by 25% for premises with three or more bedrooms, 20% for two-bedroom units, and 15% for all other residential units. The Development Charges Act would also be amended to require municipalities to spend and/or allocate at least 60% of the monies in reserve funds for water supply services, including distribution and treatment of services, wastewater services, and treatment and services related to highways.

City of Toronto Act, 2006

Under Bill 23, the City of Toronto Act, 2006 would be amended to give the Minister the power to make regulations that impose limits and conditions of the municipality's power to prohibit and regulate the demolition and conversion of residential rental properties under Section 111 of the City of Toronto Act. Ironically the City has always relied on this cherished ability to protect tenants and rental, particularly affordable rental, units.

Ontario Land Tribunal Act, 2021

Traditionally, in the interests of encouraging public participation in the planning process, the OLT has not awarded costs to unsuccessful parties except where the conduct of such parties has been patently unreasonable and/or vexatious. This could change as Bill 23 will amend the Act to specify that the OLT may order an unsuccessful party to pay the costs of a successful party. Depending on how the OLT decides to implement this, and given how expensive hearings can be, opponents of development projects may be very wary of appealing those projects.

Additional proposed changes to the Ontario Land Tribunal would include clarifying the Tribunal's powers to dismiss appeals due to unreasonable delay and failure to comply with a Tribunal order and prioritizing certain classes of proceedings.

Changes to Consumer Protection and Land Speculation

If passed, Bill 23 would further strengthen consumer protections for new home buyers by doubling maximum fines for unethical builders and vendors of new homes who unfairly cancel projects or terminate purchase agreements under the New Home Construction Licensing Act. These fines would increase from the existing $25,000 fine to $50,000 with no limit for additional financial penalties. These changes would also assist the Home Construction Regulatory Authority to use funds from these penalties to provide funds back to affected consumers which would make Ontario the first jurisdiction in Canada to provide these funds to consumers.

Further changes to Ontario's New Home Construction Licensing Act would also involve cracking down on land speculation as home builders are taking extended periods of time to complete their planning applications which delays home creation. Bill 23 would allow Ontario to work with industry partners to consult on the issue of land speculation and to determine whether regulatory changes under the New Home Construction Licensing Act are needed to address the issue.

Ontario Heritage Act

Bill 23 will significantly change the provisions of the Ontario Heritage Act by, among other things:

  1. requiring that "listed" properties meet prescribed criteria for determining whether a property is of cultural heritage value. Such criteria already exists with respect to the designation of heritage properties pursuant to Ontario Regulation 9/06 and new or different criteria may be developed by way of further regulation;
  2. imposing time limits on how long a property can be listed. Municipalities will now have to initiate the designation process for listed properties within 2 years of the listing. Otherwise a property will be delisted and cannot be listed again for a period of 5 years. The process of designation can be an expensive one for municipalities given the requirements for notice and the possibility of appeals;
  3. restricting the ability of municipalities to designate a property in response to a development application. If the property is not already listed it cannot be designated in this circumstance; and
  4. adding additional requirements for the establishment of heritage conservation districts. Those criteria will also be established by regulation.

As noted above, Bill 23 has the potential to greatly change the landscape of development approvals. To better understand the changes and the transition provisions around this subject please contact one of the following municipal and development lawyers today!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.