Fast Track for Transit: Ontario Introduces the Building Transit Faster Act

On February 18, 2020, the Minister of Transportation, the Honourable Caroline Mulroney (Minister), introduced Bill 171, An Act to enact the Building Transit Faster Act, 2020 and make related amendments to other Acts (Act) for first reading in the Ontario legislature.

The primary aim of the proposed Act is to expedite delivery of four priority transit projects in the Greater Toronto Area (GTA), being the Ontario Line, the Scarborough Subway Extension, the Yonge North Subway Extension and the Eglinton Crosstown West Extension. As such, the government’s proposed changes will be of interest to proponents of rail infrastructure projects in Ontario, as well as those who own and develop property in the GTA’s transit corridors.

The draft legislation aims to remove potential construction roadblocks and enhance coordination and engagement amongst key stakeholders in the GTA by:

1. Ensuring utility company cooperation for utility relocation: Utility relocation works have historically been a significant cause of construction delays for transit projects in urban areas such as the GTA, where utilities are abundant and utility works are ongoing. The proposed Act seeks to prevent such delays by imposing timelines on utility relocation and introducing an explicit process for managing disputes and awarding compensation if such timelines are not met. The proposed Act provides that Metrolinx may, by notice, require a utility company to take up, remove or change the location of the utility company’s utility infrastructure by a certain date if, in the opinion of Metrolinx, it is necessary for the construction of a priority transit projects. Metrolinx and the utility company are to enter reasonably promptly into negotiations to coordinate the utility work, for which the utility company is obliged to obtain permits and approvals. The date by which the work must be completed shall be as agreed on by Metrolinx or the utility company, or, in default of agreement, shall be at least 60 days after notice is serviced, provided that the utility company may apply to a judge of the Superior Court of Justice for an order altering the date specified in the notice. The cost of the work shall be apportioned by agreement, failing which Metrolinx must bear the cost of the work. If a utility company fails to comply with the notice, the Superior Court of Justice may order the utility company to comply or may authorize Metrolinx to carry out the work, and the proposed Act includes a provision for determining compensation to Metrolinx.

2. Ensuring timely access to municipal services and rights-of-way: Municipalities are often not direct parties to the transit construction agreements between the province and the transit constructors or developers, and, therefore, access to municipal services and rights-of-way can be unintentionally delayed, as municipalities review permit applications and other development approvals on timelines that may not always take into account the transit project’s construction schedule. The proposed Act seeks to prevent such delays by requiring prompt negotiation of access rights and, failing agreement, allowing Metrolinx to order access. The proposed Act allows Metrolinx to determine when the construction of a priority transit project requires (i) the occupation, modification or temporary closure of a municipal highway or municipal right-of-way; or (ii) access to or modification of municipal-owned or municipal-controlled infrastructure related to sewage works, water works or fire hydrants, and municipal services related to that infrastructure. It further provides that Metrolinx may notify the municipality that municipal service and right-of-way access is required, and the parties are obliged to enter reasonably promptly into negotiations to agree the terms for such access. If the negotiation fails, the Minister may develop a municipal service and right-of-way access order—which may include, amongst other things, mitigation measures, compensation and measures to address potential municipal liability—with which Metrolinx and the municipality are obliged to comply.

3. Ensuring developments near a transit corridor do not cause interference or delay: Due to its complexity, transit construction has the potential to be hindered or delayed by other works being carried out on or near the transit corridor. The Act seeks to give the Minister new tools to manage this risk. Under the proposed Act, any person carrying out work on or near transit corridor land must acquire a permit from the Minister where they are (i) building, altering or placing a building, other structure or road, or conducting excavation or dewatering (other than dewatering for utility infrastructure), on or under transit corridor land, or land within 30-metres of transit corridor land; or (ii) building, altering or placing utility infrastructure that would require grading or excavation on or under, transit corridor land, or land within 10-metres of transit corridor land. The Minister may set the terms and conditions on the permit, and the Minster may change or cancel such permit, at the Minister’s discretion, at any time. The proposed Act contains an exception for emergency work to be carried out by a municipality or utility company. Permitted developments that received all required approvals prior to the subject land being designated as transit corridor land are exempt, provided that the Minister may impose a six-month timeline for completion of such work, after which, such work will need a permit unless otherwise agreed. The Minister may issue a stop-work order to any unpermitted work in or near transit corridor land.

4. Removing obstructions: Similarly, transit construction can also be hindered or delayed by physical structures on or near the transit corridor. The proposed Act also allows the Minister to require the alteration or removal of things like structures (excluding dwellings), trees, shrubs or hedges on or under transit corridor land, or on or under land within 30-metres of transit corridor land (not including removal of a building, road or utility infrastructure, but including removal of part of a building), if the Minister determines it is necessary for the construction of a priority transit project. The proposed Act provides, for negotiation between the Minister and the property owner, how to carry out the removal work; however, if no agreement has been reached within 30 days of service of the notice of removal, the Minister may carry out the removal. The proposed Act provides for compensation to the property owner for the thing removed and for any damages resulting from the removal work, provided that such entitlement is lost if the person hinders, obstructs or interferes with an obstruction removal.

5. Eliminating things posing an immediate danger to construction: The proposed Act also allows the Minister to enter any property and to identify and remove any structures, trees, shrubs, hedges or other prescribed things on or under transit corridor land or within 30-metres of transit corridor land that, in the Minister’s opinion, pose an immediate danger to construction. No notice of entry is required for inspection, but the Minister is required to make reasonable efforts to notify the property owner before removing the object. The proposed Act provides for compensation to the property owner for the thing removed and any damages resulting from the removal process, provided that such entitlement is lost if the person hinders, obstructs or interferes with an obstruction removal.

6. Speeding up expropriations processes under the Expropriations Act: Acquisition of land for transit construction is a key factor in timely delivery of projects. The proposed Act provides that hearings of necessity are not required for the expropriation of land that is at least partly on transit corridor land, and where the expropriation is for a priority transit project. The removal of this requirement is intended to avoid unnecessary delays to the expropriation process.

The proposed Act contains administrative penalty—not more than C$500,000—and offence provisions—liable on conviction—to support the various powers and orders described above. With limited exceptions, the Minister may also, by regulation, delegate its functions under the Act in whole or in part to Metrolinx or to a prescribed public body, thus providing for the placement of the new tools created by the Act in the hands of the organizations closest to the development of the priority transit projects.

In short, by responding to concerns voiced by both transit developers and constituents—all of whom want more transit built faster—the Act highlights the Ontario government’s strong commitment to and support of priority transit projects in the GTA.

The Act will need to pass a second reading and third reading before it can receive royal assent and become law.

For further information, please contact:

Mark Johnson                  416-863-3318
Marianne Smith              416-863-3156

or any other member of our Infrastructure group.