On June 8, 2023, Bill 97, the Helping Homebuyers, Protecting Tenants Act, 2023 (Bill 97) received royal assent. Bill 97 was initially introduced April 6, 2023 as part of Ontario's Helping Homebuyers, Protecting Tenants housing supply action plan (the Plan), the next step in the provincial government's continued efforts to build 1.5 million homes by 2031.
Bill 97 builds on Bill 23, the More Homes Built Faster Act, 2022 (Bill 23), which received royal assent November 28, 2022, and amends parts of the following seven provincial Acts (collectively, the Acts):
The following discussion focuses on the most significant legislative changes coming out of Bill 97.
While not as expansive as the recently passed Bill 23, Bill 97 proposes several changes to the Acts, including the creation of additional Ministerial powers. These new powers continue the recent trend of putting the Province at the forefront of the Ontario planning regime.
Changes to the City of Toronto Act, 2006 and the Municipal Act, 2001, build off the Bill 23 amendments, which granted the Minister of Municipal Affairs and Housing (the Minister) authority to make regulations controlling the powers of municipalities to prohibit and regulate the demolition and conversion of residential rental properties, by providing additional detail as to what may be subject to such ministerial regulation, including:
Additionally, Bill 97 authorizes the Minister to designate land as an area to which site plan control applies regardless of whether the development contains 10 residential units or less. This is a specific exception from Bill 23's blanket exemption from site plan control for all residential developments containing 10 or fewer residential units. This amendment was introduced following key feedback from municipalities and stakeholders that there would be "significant challenges to addressing certain matters through alternative means."1
At present, there are two proposed regulations that would permit site plan control irrespective of unit count:
Under the Planning Act, the Minister is now empowered to exempt certain subsequent approvals required to establish uses permitted by a Ministerial Zoning Order (MZO) from the application of policy statements, provincial plans and official plans. In total, the Minister may now not only address zoning, but also official plan matters and site plan approvals, and order that lands subject to an MZO need not comply with provincial or municipal policy to obtain other land use planning approvals.
Changes to the Planning Act also empower the Minister to require landowners to enter agreements with a municipality and Provincial Land and Development Facilitator (or Deputy Facilitator), where appointed under the Ministry of Municipal Affairs and Housing Act,2 to address any development matters the Minister considers necessary. Until such agreement is entered, certain restrictions will apply to the land including with respect to the land use, building construction and soil activities, with only existing land uses being permitted.
This presents an interesting, potentially "double edged sword" addition to the Planning Act, as the Minister will be empowered, through the agreement, to require a landowner to pay for or provide contributions greater than the Planning Act, the Development Charges Act or any other legislation mandate. The requirement to enter into the agreement will effectively act as a condition of development until the landowner has entered into all agreements required by the order.
Bill 97 also introduces a new Ministerial power to allow the Minister to create regulations to facilitate the implementation and transition of "a policy statement", such as the existing Provincial Policy Statement, or, more likely, such regulations will come into force with the introduction of the proposed Provincial Planning Statement announced on April 6, 2023.
In addition to the new Ministerial powers granted under Bill 97 the bill also introduces further amendments to the Planning Act.
One of the more significant revisions coming out of Bill 97 is the narrowing of the definition of "area of employment", redefining this term to refer to uses relating to warehousing, manufacturing and related uses, while specifically excluding institutional uses and commercial uses, such as retail and office uses, unless associated with manufacturing or warehousing. This new definition, to come into force on a day to be named by proclamation of the Lieutenant Governor. Such date is expected to coincide with the implementation of the Provincial Planning Statement.
Given the potential impact of this revised definition, Bill 97 includes a transition provision that will allow areas designated in an official plan for business and economic uses to include one or more parcels with institutional or commercial use, established prior to the date these sections come into force, to continue on a property where so established.
Since Bill 97's introduction, the transition provision was further amended to emphasize that official plan policies will not be considered to have authorized an excluded use on any land on which the use was not lawfully established before the day the new definition of area of employment comes into force. This clarification appears to suggest that municipalities will need to determine whether the long term use of an employment area is to be the new limited definition of business and economic uses, or whether such area would be better suited as a mixed use area.
Bill 97 introduces two changes of note to interim control by-laws (ICBL), which are by-laws that may prohibit the use of land, buildings or structures without notice.
The first is the shortening of the notice period for municipalities to give notice of the passing of an ICBL from 30 to 20 days. The second amendment is the restoration of any person or public body's right to appeal at the time of the initial passing of an ICBL, rather than at the time of extension. Such an appeal can now be made within 50 days following the passage of the ICBL, a reduction from the 60 day period previously afforded to the Minister.
Also of note, the date to apply for refunds of planning application fees where no decision is made within the statutory time period has now been pushed from applications filed on or after January 1, 2023 to July 1, 2023.3 Included is a transitionary provision that any refund owing as a result of applications filed prior to July 1, 2023, will be deemed not required. One proposal that is somewhat under the radar is that the Province has indicated that some municipalities may not be required to refund fees.4 What was not introduced through Bill 97 were any additional details on how the system will function given the new "refund" requirements, in particular during the pre-application procedure.
Lastly, Bill 97 also clarifies Bill 23's restriction on the ability to require more than one parking space where additional residential units are permitted as of right, by revising the Planning Act to allow official plans and zoning by-laws to require more than one parking space for primary residential units.
The new legislation also amends the Residential Tenancies Act, 2006 which, at a high-level, increases tenants' protections against evictions due to renovations, demolitions, conversions and landlord's own use and clarifies tenants' rights to install air conditioners where the landlord does not supply air conditioning.
On April 6, 2023, the same day as Bill 97 was introduced, the provincial government proposed an update to the Provincial Policy Statement, 2020 ( the PPS), integrating it with A Place to Grow: Growth Plan for the Greater Golden Horseshoe (the Growth Plan), to create the proposed Provincial Planning Statement, 2023 (Planning Statement).
It is currently anticipated that the proposed Planning Statement will come into force in autumn of this year following the commenting period which has been extended to August 4, 2023.5 However, of note, the City Planning Division of the City of Toronto has announced its intention to recommend that City Council request the Minister delay the effective date of the Planning Statement until January 1, 2024.
The Province also took the opportunity to proclaim into force the amendments to Section 23 of the Planning Act introduced through Bill 23. Accordingly, the Minister may now amend an official plan by order, if it is of the opinion of the Minister that the official plan is likely to adversely affect a "matter of provincial interest".
2 Schedule 4 of Bill 97 permits the Minister to, in addition to appointing a Provincial Land Development Facilitator, appoint four Deputy Facilitators with the same functions as the Facilitator.
3 Bill 109, More Homes for Everyone Act, 2022 originally introduced the concept of refunds for planning application fees in April 2022.
5 The government is seeking input on the Planning Statement until August 4, 2023, extended from the initial commenting period ending June 5, 2023.