O. Reg. 149/20: The implications of COVID-19 on land use planning timelines in Ontario

On March 17, 2020, in response to the COVID-19 pandemic, the Government of Ontario declared a state of emergency pursuant to section 7.0.1(1) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9 ("EMCPA"). O Reg. 73/20 of the EMCPA ("O. Reg. 73/20") was passed shortly thereafter, on March 23, 2020, as a means of addressing the implications of the state of emergency on judicial and administrative timelines. O Reg. 73/20 retroactively suspended and effectively extended limitation periods, and periods of time within which any step must be taken in a proceeding, under all provisions of statutes, regulations, rules, by-laws or orders of the Government of Ontario, including any intended proceeding, effective March 16, 2020 for the duration of the emergency.

Members of the development industry, including the Ontario Home Builders' Association, raised concerns regarding the impact that O. Reg. 73/20 would have in freezing land use planning matters, and expressed the need for a tailored approach that would keep land use planning projects moving forward.

In a special session on April 14, 2020, the Legislative Assembly of Ontario convened to pass "Bill 189, the Coronavirus (COVID-19) Support and Protection Act, 2020" ("Bill 189"), which amended five pieces of Legislation, including the Planning Act, R.S.O. 1990, c. P. 13 ("Planning Act"). Bill 189 amends the Planning Act to authorize the Minister to make regulations in connection with the COVID-19 emergency, including with respect to time periods. The following day, O. Reg. 149/20 (the "New Regulation") was subsequently adopted under the Planning Act for the purpose of giving municipalities greater flexibility on the process for planning matters during the pandemic. The New Regulation provides some opportunity for land use planning matters to progress, at the discretion of municipalities.

Changes to Notices of Decision Requirements under the Planning Act

Section 4 of the New Regulation sets out changes regarding when municipalities must give notice of a decision with respect to applications under the Planning Act. Notices of decision are important because they formalize the decision made, and are the "starting pistol" for appeal periods. Notice requirements for the following Planning Act matters are impacted:

• The adoption, approval, modification, or refusal of part or all of an official plan ("OP") or the refusal of an official plan amendment ("OPA") request;
• The enactment of a zoning by-law ("ZBL") or the refusal of an application for a zoning by-law amendment ("ZBLA");  
• The refusal to grant approval to a draft plan of subdivision, or a change to the conditions of approval for a plan of subdivision;
• The refusal (by a Committee of Adjustment) to give a consent or a change to the conditions of a consent; and
• A decision regarding a community planning permit.

The effect of the New Regulation, will be that a notice of a decision will be deemed not to have been completed under three circumstances:

1. The notice was given on or after February 26, 2020 and before April 15, 2020;
2. The decision that requires notice was made on or after March 2, 2020 and before April 15, 2020; or,
3. The notice was not completed before April 15, 2020.

The period for giving notice of decisions in these circumstances will be extended for the duration of the Emergency, including an additional period of 15 days following the termination of the Emergency.

For minor variance applications made on or after February 26, 2020 and before April 15, 2020, the time period for a committee of adjustment to give a notice of decision is extended to ten days following the termination of the Emergency. Additionally, the limitation period for appeals of a Committee of Adjustment decision to the Local Planning Appeal Tribunal is modified to 20 days from the date of the committee's notice of decision, rather than 20 days from the date of the "making of the decision".

Increased municipal control over timing during COVID-19 Emergency

Section 5 of the New Regulation excludes the duration of the Emergency from the calculation of an enumerated list of time periods in the Planning Act and the City of Toronto Act, 2006 ("City of Toronto Act"). Although the New Regulation was enacted on April 15, 2020, enumerated time periods that would have ended on or after March 17, 2020 will also benefit from the exclusion of the duration of the Emergency from the calculation of time.

The enumerated time periods in section 5(1) of the New Regulation, which benefit from the exclusion of the duration of the Emergency from the calculation of time, include:

• The time for municipal clerk to forward a record to the Tribunal following receipt of a notice of appeal of an OP, OPA, ZBL, Site Plan Approval, Plan of Subdivision (including change of Conditions, Consent (including change of conditions);
• The time for council to decide on applications, before being deemed a non-decision, of an OP, OPA, ZBL, Site Plan Approval, Plan of Subdivision (including change of Conditions, Consent (including change of conditions), Demolition Permit, Relief from Conditions of a Demolition Permit, Removal of a Holding Provision, Community Planning Permit;
• The time for council or approval authority to determine completeness of application or make a motion to the Tribunal regarding same for an OPA, ZBLA or Plan of Subdivision;
• The time for council to provide notice of an application to prescribed persons for an OPA, ZBLA or Plan of Subdivision; and
• The time for committee of adjustment to hold hearing for a Minor Variance.

Notably, the enumerated time periods deal with acts that must be completed by municipal actors such as: councils, planning boards, and approval authorities. Time periods in the Planning Act that impose an onus on appellants or applicants to act have not been suspended or extended by the New Regulation. If triggered, limitation periods will continue to run on appeals to the Tribunal of the following types of decisions:

• The adoption, approval, modification, or refusal of part or all of an OP or the refusal of an OPA request;
• The adoption of a ZBL or refusal of a ZBLA application;
• The decision of a committee of adjustment on a minor variance;
• The refusal of a draft plan of subdivision or a change of conditions;
• The decision of the Minister or Council on a provisional consent or a change of conditions; and
• The decision of council on a community planning permit.

This policy choice has the impact of enabling municipalities to exert greater control over the timing and progress of planning matters during the pandemic. The New Regulation lends flexibility to municipalities that are now afforded the option to take advantage of extended time frames for meeting their obligations under the Planning Act, or if preferred, to proceed expeditiously with planning matters prior to the end of the Emergency. No aspect of the New Regulation prevents municipalities from acting prior to the end of the Emergency. 

Where municipalities choose to move forward with planning matters during the Emergency, appellants and applicants must be prepared to respond as quickly as they had prior to the pandemic. Many sections of the Planning Act which require appellants to file a notice of appeal, often within 20 days of receiving a notice of decision, have not been suspended or extended through the New Regulation. Additionally, while these limitations periods may have previously been captured by O. Reg. 73/20, as a result of the New Regulation, that is no longer the case.

Completion of Consents

In addition to various deferrals for notices of decision on appeals and applications, the New Regulation has an important effect with respect to consents that have already been granted. The duration of the Emergency will not be included for the calculation of:

• The one-year period within which an applicant must fulfill conditions imposed on a consent; and
• The two-year period within which a consent will lapse from the date of the certificate, if the transaction in respect of which the consent was given is not carried out. 

Certain non-decision appeals and motions retroactively deemed not to have been filed

Section 5(2) of the New Regulation provides that where an enumerated time period in section 5(1) ended on or after March 17, 2020, but before the New Regulation was enacted on April 15, 2020, certain appeals and motions will be retroactively deemed not to have been filed.

The purpose of this provision is to protect municipalities from appeals or motions relating to non-decisions that occurred due to the expiration of a time period after the commencement of the COVID-19 Emergency, but before the enactment of the New Regulation.

The expiration of any enumerated time period, occurring between March 17, 2020 and April 15, 2020, that resulted in a non-decision, is now moot. These time periods are retroactively deemed not to have ended, pursuant to section 5(2) of the New Regulation. However, due to this retroactive application, appeals or motions may have been filed in respect of "moot" non-decisions, by parties who were unaware of the eventual enactment of the New Regulation. It is these appeals and motions that are deemed not to have been filed.

In such cases, municipalities will have the time periods extended by the duration of the COVID-19 Emergency, and parties must wait for the new time period to be exhausted prior to filing a fresh appeal or motion for non-decision.

In order for section 5(2) to apply, the following criteria must be met:

1. The non-decision occurred due to a time period expiring on or after March 17, 2020, and before April 15, 2020; and
2. The appeal or motion was filed on or after March 17, 2020, and before April 15, 2020.

Where the above-noted criteria are met, the following types of appeals will be retroactively deemed not to have been filed:

• Non-decision on OP by approval authority, non-decision on an OPA, application for demolition permit, application for relief from conditions of demolition permit, ZBLA, removal of holding symbol, approval of plans and drawings for site plan, a consent, or a Community Planning Permit;

Where the above-noted criteria are met, the following types of motions will be retroactively deemed not to have been filed:

• Non-decision on completeness of an application for OPA, application for ZBLA, or application for Plan of Subdivision.

Some Tribunal processes continue to be subject to the suspensions of O. Reg. 73/20

While the New Regulation deems O. Reg. 73/20 to have never applied with respect to the Planning Act, its regulations, and section 114 of the City of Toronto Act, it does not address the Local Planning Appeal Tribunal Act ("LPATA") or the Tribunal's Rules.

Planning appeals which have already been filed with the Tribunal and are not captured by section 5(2) of the New Regulation, continue to be subject to the suspensions set out in O. Reg. 73/20. Specifically, for the above-noted appeals, any limitation periods or periods of time within which any step must be taken in a proceeding, set out in LPATA or the Tribunal's Rules, are suspended for the duration of the Emergency, retroactive to March 16, 2020.

Extension of the duration of interim control by-laws

Section 6 of New Regulation extends the duration of interim control by-laws that were in effect on March 17, 2020. These will remain in effect until the termination of the Emergency, unless the municipality chooses to amend or repeal the by-law. Thereafter, interim control by-laws that would have expired before the termination of the Emergency will remain in effect for a period equivalent to the number of days between March 17, 2020 and the day the by-law would have expired.

For interim control by-laws that will expire after the termination of the Emergency, they will remain in effect for an additional period equivalent to the number of days between March 17, 2020 and the termination of the Emergency.

Conclusion

Perhaps one of the most important aspects of O Reg. 149/20 is the extended powers that it has granted municipalities to deal with land use planning timelines and progress during the Emergency. The New Regulation provides municipalities with the option to either extend time frames for meeting their obligations under the Planning Act, or to proceed with planning matters immediately, since no aspect of the New Regulation prevents municipalities from acting prior to the end of the Emergency. It is therefore important that appellants and applicants remain diligent in the event they must respond to the chosen timelines triggered by a municipality.