Building on Recovery: Ontario’s Infrastructure-Related Legislative Developments

On July 8, 2020, the Minister of Municipal Affairs and Housing, the Honourable Steve Clark (Minister), introduced Bill 197, COVID-19 Economic Recovery Act, 2020 (Act). The primary aim of the proposed Act is to lay the foundation to restart jobs and development, strengthen communities, and create opportunity for people in every region of the province. In doing so, the Act proposed to amend a number of Ontario statutes and also to enact two new ones, many of which touch upon areas of law in the province that are of significance to developers and investors in Ontario’s construction and infrastructure sectors.

The following aspects of the Act will be of interest to proponents of infrastructure projects in Ontario, as well as those who own and develop property in the province:

1. Transit-Oriented Communities Act, 2020: One of the two new statutes envisioned by the Act, the Transit-Oriented Communities Act, 2020, if enacted, will permit 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 draft statute 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 in relation to the expropriation. Instead, the current version of the bill permits the establishment of a process for receiving and considering comments from property owners respecting a proposed expropriation of such land. A “transit-oriented community project” is defined 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.” More information on Bill 171 is outlined below.
2. Ministry of Infrastructure Act, 2011: If enacted as discussed above, the Transit-Oriented Communities Act, 2020 also includes provisions which will amend the Ministry of Infrastructure Act, 2011. The amendments principally function to 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 such projects, and provide Ontario with very broad tools to encourage both public and private sector participation in transit-oriented communities and related development projects. These changes have the potential to advance the purpose of the companion Transit-Oriented Communities Act, 2020.
3. Public Transportation and Highway Improvement Act: Changes are being proposed to the existing Public Transportation and Highway Improvement Act in order to eliminate hearings of necessity for expropriations of property for public transportation and highway projects. Instead, the changes contemplate that the appropriate minister may establish a process for receiving comments from property owners about such expropriations. These changes would advance the goal of removing potential roadblocks to construction, including infrastructure projects.
4. Environmental Assessment Act: Significant amendments are proposed to be made to Ontario’s existing Environmental Assessment Act, with the stated aim of modernizing its environmental assessment requirements. While the details of the amendments are beyond the scope of this bulletin, the amendments are proposed to come into force in three phases in order to allow the industry to transition gradually to the new approach. For a more in-depth discussion of these changes, please see our July 2020 Blakes Bulletin: Ontario Government Proposes Overhaul of Environmental Assessment Act.
5. Planning Act: Among other amendments, sections 37 and 37.1 of the Planning Act are being replaced. The declared aim of the changes is to allow 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. Provisions are also included 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 park or other public recreational purposes. The proposals also include expanded 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 with respect to site plan control and inclusionary zoning. Among other things, the changes will provide the Minister of Municipal Affairs and Housing with 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.
6. Development Charges Act: Among other changes to the Development Charges Act, 1997, the list of services for which development charges apply has been expanded, and 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. The stated purpose of the changes is 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 additionally provide for a separate community benefits charge, which will enable municipalities to fund growth-related capital costs of services due to higher density developments.
7. Occupational Health and Safety Act: Amendments to the Occupational Health and Safety Act will permit regulations that allow for the adoption by reference not just of codes, standards, criteria and guides, but also any amendments that are made from time to time, simplifying the ability for Ontario’s standards to be updated more regularly, without further regulatory amendments.
8. Building Code Act: Changes are included to the Building Code Act, 1992 to place regulation-making authority with the Minister of Municipal Affairs and Housing—rather than the Lieutenant Governor in Council—which changes are intended to allow for expedited and responsive processes.

In summary, the Ontario government has built into its omnibus COVID-19 recovery package significant tools for the construction and infrastructure industry, which have the potential to increase the speed and efficiency with which projects can move from concept to completion. Notably, these tools will require the balancing of both public and private interests in the advancement of all types of infrastructure projects. The Act will need to pass a second reading and third reading before it can receive royal assent and become law.

Of interest to transit developers and constituents seeking to be involved in and around the delivery of four priority transit projects in the Greater Toronto Area (GTA)—the Ontario Line, the Scarborough Subway Extension, the Yonge North Subway Extension and the Eglinton Crosstown West Extension—Bill 171, An Act to enact the Building Transit Faster Act, 2020 and make related amendments to other Acts, received Royal Assent on July 8, 2020, without substantial amendments and is now in force. As detailed in our February 2020 Blakes Bulletin: Fast Track for Transit: Ontario Introduces the Building Transit Faster Act, the Building Transit Faster Act, 2020 highlights the Ontario government’s strong commitment to and support of priority transit projects in the GTA.

Finally, for developers with projects in both Ontario and Quebec, it will be important to keep an eye on similar advances under Quebec’s Bill 61, An Act to restart Québec’s economy and to mitigate the consequences of the public health emergency declared on 13 March 2020 because of the COVID-19 pandemic (Bill 61), which was tabled by the Minister Responsible for Government Administration and Chairman of the Conseil du trésor. As detailed in our June 2020 Blakes Bulletin: Bill 61: Preparing for Quebec’s Post-Pandemic Economy, Quebec’s Bill 61 provides tools to accelerate projects in that province.

For further information, please contact:

Mark Johnson                          416-863-3318

or any member of our Infrastructure group.