No. 20/050 – July 22, 2020
Issue:
On July 21, 2020, the Government of Ontario passed into law omnibus legislation to enable its objectives to restart the provincial economy. Bill 197, COVID-19 Economic Recovery Act, 2020 amends a number of existing provincial statutes and enacts two new pieces of legislation. The scope of the legislation is broad and includes a number of measures that will impact Ontario’s broader construction industry, including engineers.
The Act contains a number of tools that are designed to enable the broader construction sector to increase the speed and efficiency with which projects can be completed. Notably, these tools will require the balancing of both public and private interests in the advancement of all types of infrastructure projects.
The following summaries highlight elements of the Act that will be of particular interest to CEO member firms. It is recommended that readers access the legislation using the active link included above to review and familiarize themselves with the particular portions of the Act that could impact their business operations:
Schedule 1: Building Code Act
The Act makes changes streamlining the Ontario Building Code development process, aligning it with National Construction Codes, and enabling Ontario to respond faster to construction sector needs. The Building Code Act has been amended to change regulation-making authority from the Lieutenant Governor in Council to the Minister of Municipal Affairs and Housing. The alignment of the Ontario Building Code with National Construction Codes is made possible through an amendment that allows the Minister of Municipal Affairs and Housing to make regulations by adopting by reference, in whole or in part, with such changes as the Minister considers necessary, of documents including the National Building Code of Canada and the National Plumbing Code of Canada, among others.
Schedule 3: Development Charges Act, 1997
The Act amends the Development Charges Act, 1997. The amendments repeal and replace certain amendments made by the More Homes, More Choice Act, 2019 that are not yet in force and seek to make changes to other provisions that were enacted in that Act. Elements of those amendments are retained, but the following changes and additions are sought:
The list of services in subsection 2 (4) of the Act for which a development charge can be imposed is expanded from the list that was included in the More Homes, More Choice Act, 2019. A new subsection 2 (4.1) sets out the relationship between development charges and the community benefits charges that can be imposed by by-law under the Planning Act.
Section 7 of the Act currently provides for services to be grouped into categories within a development charge by-law. The Schedule repeals and replaces section 7 to provide for services to be included in classes which can be composed of any number or combination of services, including parts or portions of the services listed in subsection 2 (4) of the Act or parts or portions of the capital costs listed in subsection 5 (3) in respect of those services. A class set out in a by-law is deemed to be a single service for the purposes of the Act in relation to reserve funds, the use of money from reserve funds and credits.
Transitional rules that were added as section 9.1 of the Act by the More Homes, More Choice Act, 2019 with respect to the duration of development charge by-laws are repealed and replaced. Related changes are proposed for transitional rules in section 26.2 of the Act with respect to the determination of the amount of a development charge.
A new section 33.1 provides transitional rules with respect to reserve funds established by upper-tier municipalities for services for which a development charge could no longer be imposed.
Regulation-making powers have also been added with respect to transitional matters.
The purpose of the changes are to allow municipalities to recover 100 per cent of the cost to build critical community services, such as long-term care, child care, public health facilities and affordable housing; they are also meant to enable a separate community benefits charge that would empower municipalities to fund growth-related capital costs of services due to higher density developments.
Schedule 4: Drainage Act
The province will work with the farm and food sector to streamline administrative processes under the Act to encourage innovation in drainage practices, help to prevent flooding, and reduce costs for farmers, rural landowners, and municipalities.
The amendments relate to the service of documents and to the processes involved in amending engineers’ reports, approving improvement projects, and requesting environmental appraisals. Member firms are encouraged to familiarize themselves with the amendments contained in the Act and how its amendments of the Drainage Act will impact their practice.
Schedule 6: Environmental Assessment Act
The Act makes extensive changes to Ontario’s Environmental Assessment Act. These changes seek to modernize existing environmental assessment requirements. The amendments to the Act will be realized in three phases thereby transitioning gradually to a more modern approach. The amendments are complex and make some significant changes to process.
The changes also seek to reduce approval timelines by half from 6 to 3 years for the largest projects and match the level of assessment with the level of environmental impact so critical infrastructure projects could proceed without undue delay.
Also significant is the increased authority provided to local municipalities with changes granting them more say in landfill approvals by requiring new, large landfill applicants to ensure there is local support from host communities, and certain neighbouring adjacent municipalities within 3.5km that meet certain criteria as part of the approvals process.
Note these changes in Bill 197 that impact the environment are also currently posted to the Environmental Registry of Ontario (ERO) for public consultation. CEO has already provided member firms notice of these consultations and has asked those that are interested to private commentary to support CEO’s creation and submission of an industry position on these issues.
Schedule 17: Planning Act
Among other amendments Bill 197 replaces sections 37 and 37.1 of the Planning Act. The intent of these changes is to enable municipalities to impose certain community benefits charges against land to pay for the capital costs of facilities and services required due to local development or redevelopment. The legislation also includes provisions to more clearly establish the relationship between community benefits charges and development charges that can be imposed under the Development Charges Act, 1997, and those that can be funded from the special account used for the acquisition of land to be used for community or other public recreational purposes. Furthermore, Bill 197 expands order-making powers for the Minister with respect to projects and lands that are not in the Greenbelt Area—within the meaning of the Greenbelt Act, 2005—including site plan control and inclusionary zoning. Among other things, the changes provide the Minister of Municipal Affairs and Housing the ability to mandate the exterior design of buildings, landscaping and pedestrian and vehicle access, and to require the inclusion of affordable housing units in the development or redevelopment of specified lands, buildings or structures.
Schedule 19: Public Transportation and Highway Improvement Act
Bill 197 also amends the Public Transportation and Highway Improvement Act, doing away with hearings of necessity for expropriations of property for public transportation and highway projects. As an alternative, the legislation enables the appropriate minister to establish a process for receiving comments from property owners about such expropriations. These steps further the objective of removing potential roadblocks to construction, including infrastructure projects.
Schedule 20: Transit-Oriented Communities Act, 2020
One of the two new statutes enabled by the Act, the Transit-Oriented Communities Act, 2020, permits the Lieutenant Governor in Council to designate land as “transit-oriented community land” if, in the opinion of the Lieutenant Governor in Council, it is or may be required to support a transit-oriented community project. The legislation provides that if land, any part of which is transit-oriented community land, is expropriated in specified circumstances, a related hearings process under the Expropriations Act does not apply. Rather, the legislation provides for the creation of a process for receiving and considering comments from property owners respecting a proposed expropriation of the land in question. The legislation defines a “transit-oriented community project” as “a development project of any nature or kind and for any usage in connection with the construction or operation of a station that is part of a priority transit project, and includes a development project located on transit corridor land within the meaning of Bill 171, Building Transit Faster Act, 2020.” Bill 171 was passed in to law and received Royal Assent July 8, 2020.
The Transit-Oriented Communities Act, 2020 also includes provisions which amends the Ministry of Infrastructure Act, 2011. The amendments permit the applicable minister, with the approval of the Lieutenant Governor in Council, to establish, acquire, manage, participate in or otherwise deal with corporations, partnerships, joint ventures or other entities for the purpose of investing assets in, supporting or developing transit-oriented community projects related to priority transit projects. These powers extend to borrowing and management of financial risks in connection with these projects, and provide the province with very broad tools to encourage both public and private sector participation in transit-oriented communities and related development projects.
Reducing Delays for Environmental Infrastructure Projects
While not included as part of the legislation, the government’s backgrounder to its original announcement noted that it was engaged in making improvements the Environmental Compliance Approval process for wastewater and stormwater infrastructure. The new process would provide a single, consolidated approval process for low-impact municipal sewage collection and stormwater management projects. Simple, routine changes by municipalities would be pre-authorized to begin construction without needing separate approvals for each project. The intent is for the new process to ensure municipalities are able to build critical infrastructure faster, eliminating costly construction delays while maintaining strong environmental protections.
The government’s COVID-19 recovery legislation has been constructed with broad, sweeping authority and enabling tools. These powers are meant to facilitate the construction and infrastructure industries to undertake and complete projects with increased speed and efficiency thereby helping to bolster the provincial economy. While the tools to spur this activity are now in place what is important now is how actors will use them with an eye for balancing of both public and private interests. This is something that government and stakeholders will have to figure out working together over time.
If you have any questions about this bulletin do not hesitate to contact David Zurawel at [email protected] or Catherine Morrison, [email protected]. Please note that CEO has closed its office but employees remain active at this time.