Bill 189, Coronavirus (COVID-19) Support and Protection Act, 2020 amendments to the Planning Act and Ontario Regulation 149/20 Special Rules Relating to Declared Emergency

On March 17, 2020, in response to the COVID-19 outbreak, the government of Ontario declared an emergency under the Emergency Management and Civil Protection Act.

Bill 189, Coronavirus (COVID-19) Support and Protection Act, 2020 (Planning Act – Schedule 4)

In an effort to mitigate the negative impacts of COVID-19, the government has undertaken a series of temporary measures. To respond to municipal concerns about planning decisions and timelines, the government introduced, and the Legislature passed amendments to the Planning Act to provide the Minister of Municipal Affairs and Housing with the authority to temporarily and retroactively suspend certain Planning Act timelines. The effective suspension under the new authority applies retroactively from the date the provincial emergency began (in this case, March 17, 2020) and ceases automatically once the emergency ends.

A new section has been added to the Planning Act, which establishes authority for the Minister of Municipal Affairs and Housing to make regulations providing that the time of an emergency as declared under the Emergency Management and Civil Protection Act (EMCPA) is not to be included for the purposes of counting periods of time in the Planning Act, its regulations, and the City of Toronto Act, 2006. This will mean that periods of time in provisions specified in the regulation would effectively be suspended during the entirety of a provincially declared emergency.

Additionally, the legislative amendments provide the Minister of Municipal Affairs and Housing with the authority to provide that an order under section 7.1 of the EMCPA does not apply to land use planning timelines. Instead, the suspension of land use planning timelines is entirely addressed by Minister’s regulations. This will provide clarity regarding land use planning timelines for decision makers during the COVID-19 outbreak.

Ontario Regulation 149/20 - Special Rules Relating to Declared Emergency

Ontario Regulation 149/20 clarifies that O. Reg. 73/20 under the EMCPA does not apply to land use planning timelines. As such, the regulation provides for those notices of municipal decisions and related appeal periods that may have been interrupted by the issuance of O. Reg. 73/20 to be restarted so that those decisions may be finalized.

Specifically, the regulation:

• provides for municipalities to re-issue notices of council’s or committee of adjustment’s decisions on planning matters, allowing for the appeal periods to complete, and
• allows up to 15 days after the emergency ends for notices of most decisions to be issued, and up to 10 days after the emergency ends for notices of minor variance decisions to be issued.

The regulation clarifies that any appeals related to notices of decisions that may have been received during these interrupted appeal periods continue to be valid.

Ontario Regulation 149/20 under the Planning Act identifies those specified planning timelines that are effectively suspended in order to support municipal emergency response activities. The regulation only addresses timelines in relation to land use planning matters.

The regulation under the new legislative authority effectively suspends a number of timelines including those that, once exceeded, allow proponents to appeal non-decisions on specified applications, including the following:

• Official plan amendment (OPA): 120 days
• Zoning by-law amendment (ZBLA): 90 days
• Combined OPA and ZBLA: 120 days
• Holding by-law: 90 days
• Plan of subdivision: 120 days
• Consent: 90 days
• Site plan (including under the City of Toronto Act, 2006): 30 days
• Community planning permit: 45 days
• Demolition permits: 30 days

The regulation also effectively suspends the following processing / administrative timelines in the Planning Act:

• a municipality to send a record to the Local Planning Appeal Tribunal (15 days from the end of the appeal period)
• a municipality to send an adopted official plan/amendment to the approval authority (15 days from adoption)
• a committee of adjustment to hold a hearing on a minor variance (30 days from receipt of application)
• complete applications, which includes:
  • a municipality to advise applicant whether application (certain types only) is complete (30 days from payment of fee
  • an applicant’s ability to challenge municipal determination of completeness (30 days from municipal confirmation that it is incomplete
  • the related public notice of the receipt of the complete application (15 days from confirmation that it is complete)
• interim control by-law (but only in relation to those in effect when the emergency began):
  • to be in effect for a limit of 1 year
  • extensions cannot exceed a total of 2 years from the date it came into effect
• an applicant to pay under protest for:
  • parkland cash-in-lieu payments (30 days from payment) and to notify the municipality of the protest (15 days after application to Tribunal)
  • a fee for the processing of a planning application (30 days)
• an applicant to:
  • satisfy the conditions for a provisional consent (1 year from the date of notice of the consent)
  • complete the transaction for a consent (2 years from consent certificate being given)
  • register a plan of subdivision (30 days from final approval)

For any appeals filed appealing a municipality’s lack of decision during the period from the declaration of the emergency (March 17, 2020) to the filing of O. Reg. 149/20 in respect of applications that would have passed the relevant timeline on or after March 17, 2020, the regulation stipulates that those appeals are not valid.

Finally, the regulation also provides that any interim control by-law that was in effect during the emergency is extended by the time of the emergency.

Municipal Implementation

Collectively, these changes provide municipalities with the ability to hold off on making decisions on planning applications until after the emergency has ended, without the risk of appeal to the Local Planning Appeal Tribunal (LPAT) should they not make decisions on planning matters within the legislated timelines. If municipalities wish to make decisions on applications during this time, they are free to do so.

Municipalities have the discretion to determine if they wish to continue to review and make decisions on all or certain planning applications. However, municipal councils need to decide whether they can adequately review and process planning applications and hold statutory public meetings, where required, while following the advice of Ontario’s Chief Medical Officer of Health (i.e., physical distancing) and any other relevant orders under the Emergency Management and Civil Protection Act during the COVID-19 outbreak.

Municipalities can consider how to meet the Planning Act’s requirements using electronic and virtual channels to engage and solicit feedback from the public on land use planning matters while maintaining physical distancing. This may include a mixture of technologies to meet local public needs (e.g., WebEx with instant messenger, Adobe Connect, Skype, Zoom, moderated teleconference lines, voicemail systems, etc.) in combination with traditional forms, like written submissions (email or paper copy) and posting documents online.