Recent amendments to the Ontario Heritage Act: What landowners need to know

On June 6, 2024, Ontario's Homeowner Protection Act, 2024 ("Bill 200") received royal assent, bringing into effect a number of legislative changes, including amendments to the Ontario Heritage Act (the "Act") municipal heritage registry scheme.^[1]

It is important to recall that municipal heritage registers contain two different kinds of properties:

1. Designated properties
2. Non-designated properties

Designated properties are heritage properties that have been legally designated by a municipal by-law, which is registered on title to the property.^[2] Once designated, an owner will require a heritage permit to alter or demolish a designated property.^[3]

This article focuses on non-designated properties.

Defining non-designated properties

Non-designated properties are properties that have been identified as having some cultural heritage value or interest but have not been legally designated under the Act by a municipal by-law.

Under the Act, municipalities are empowered to add non-designated properties of cultural heritage value or interest to their heritage registers.^[4] Listing on the register is one step short of designation under the Act and constrains property rights by requiring an owner of a non-designated property to give the municipality 60 days' notice before demolishing the property.^[5] This notice period is essentially a trigger, allowing a municipality time to consider protecting the property from demolition by designating it under Part IV of the Act.

Historically, municipalities across the province have maintained vast heritage registers (especially Ottawa, with the largest registry in the province, at its peak with 4,600 properties) as a failsafe - they did not need to designate these properties to keep tabs on them. They simply waited to address whether designation was appropriate only when an owner had formed an intention to demolish. This created great uncertainty for landowners, delayed the issuance of demolition permits and sometimes prevented redevelopment completely.

In 2022, Bill 23 introduced changes to the Act meant to prevent non-designated properties from languishing indefinitely on heritage registers. The amendments gave municipalities two years to either designate or remove properties from their heritage registers.^[6] At the time, Bill 23 was criticized by municipalities on the one hand for not providing enough time to deal with the non-designated properties on their registries, and by the property owners on the other hand for leaving a glaring gap whereby municipalities could simply remove and replace non-designated properties on their heritage registers in order to re-start the clock for designation. Bill 200 closes the gap on these issues.

In brief, Bill 200 amends the Bill 23 provisions of the Act relating to heritage registers by:

1. Providing municipalities with additional time (until January 1, 2027) to determine whether to designate non-designated properties currently listed on their heritage registers.
2. Preventing municipalities from relisting a non-designated property for five years after it is removed from a heritage register.

Ontario Heritage Act: Registry amendment overview

1. Making the registry more accessible

Heritage registers are governed by section 27 of the Act. With respect to section 27(1.1), Bill 23 introduced a provision requiring municipalities to make it easier to access the list of registered properties.

Previously, it was not easy to know whether a property was on the heritage register as this is not something that is registered on title to a property and, prior to Bill 23, there was no obligation for municipalities to make this information readily available. Bill 23 created a positive obligation for municipalities to make registered properties easy to identify and Bill 200 did not subsequently change this provision.

2. Non-designated properties on the heritage register

With respect to sections 27(3) & (3.1), Bill 23 limited the criteria for adding a non-designated property to the registry, requiring that, in addition to being of cultural value or interest, a property had to meet the prescribed criteria under Ontario Regulation 9/06. Bill 200 did not amend these sections.

3. Notice and objection provisions

Prior to Bills 23 and 200, the More Homes, More Choice Act, 2019 ("Bill 108") introduced notice and objection provisions for new properties added to the registry. Under Bill 108, section 27(13) excluded properties that were already on the registry from the notice and objection provisions.

Bill 23 replaced section 27(13) completely and now allows an owner to object to having their property included on the registry, even if the property was already on the registry at the time that Bill 23 came into force. Bill 200 did not amend this section.

4. Removing non-designated properties from the registry

Bill 23 created a scheme for the automatic removal of non-designated properties from the registry.

Section 27(14) requires the removal of non-designated properties from the heritage registry in cases where a municipality has given notice of intention to designate the property, under either of the following circumstances:

1. The municipality withdraws the notice of intention.
2. The municipality does not withdraw the notice of intention, but fails to pass a by-law designating the property.
3. The municipality passes a by-law designating the property, but the by-law is subsequently repealed.

Section 27(15) requires the removal of non-designated properties from the heritage registry if the municipality has not given a notice of intention to designate the property within two years of adding the non-designated property to the heritage registry. If the property was listed prior to January 1, 2023, that date was January 1, 2025.

Updates to the Designate or Lose it Provisions

Bill 23 introduced subsections 27(16), (17) & (18) (the "Designate or Lose it Provisions"), which gave municipalities two years to decide whether to designate non-designated properties that were already on their heritage registers at the time Bill 23 came into force. After two years, if a municipality had not issued a notice of intention to designate a non-designated property that was already on the heritage registry, the property would automatically come off the heritage register and could not be put back on the heritage registry for five years.

Bill 23 introduced this provision as a way of mitigating the power municipalities had amassed by adding numerous non-designated properties to the heritage registry without any intention of designating properties until or unless an owner came forward with an intention to demolish.

The Designate or Lose it Provisions left municipalities scrambling to do work that they had never actually intended to do, particularly since new regulations under the Act created a higher bar for designation. In response to Bill 23, the City of Ottawa announced that it would be de-listing large groups of non-designated properties en-masse, sparking concern that the City was going to try to avoid the five-year moratorium by simply de-listing and re-listing properties as needed.

Indeed, in February 2024, the City of Ottawa confirmed that they would be de-listing a majority of the 4,600 non-designated properties from the registry to give themselves "more flexibility to protect these properties in coming years."^[7] Between February 21, 2024, and April 17, 2024, Ottawa's City Council approved the removal of approximately 800 non-designated properties from the heritage registry.

In order to address the loophole in the Act and to provide municipalities with more time to assess the properties on their heritage registries, Bill 200 introduced two important changes.

• First, Bill 200 gave municipalities an additional two years to determine whether or not to designate properties on the register, which means that they now have until January 1, 2027, to deal with properties on their registers before the properties are automatically removed.
• Second, Bill 200 closed the loophole so that if a municipality removes a non-designated property from the heritage register, they will not be able to re-list the property for five years.

What happens to those 800 non-designated properties that were removed from the City of Ottawa's heritage registry in early 2024? Bill 200 introduced new, retroactive provisions to prevent the exploitation of the Bill 23 loopholes. Whereas the City of Ottawa removed these 800 properties so that they could evade the two-year limitation implemented by Bill 23, Bill 200 introduced a new section – subsection 27(21) – which safeguards these properties from the heritage registry for five years from the day that they were removed.^[8]

Although Bill 200 does give municipalities more time to decide whether to designate properties on their heritage register, it also provides much-needed certainty for property owners. If you have any questions about how the Ontario Heritage Act might impact your property rights or development, please contact our team at Gowling WLG.