Ontario Proposes Legislation to Expedite Planning Approvals for New Major Employment Uses

On December 6, 2018, the Government of Ontario tabled legislation that would, if passed, give municipalities the power to enact by-laws to facilitate new major employment uses without the need to comply with higher-order planning regulations, provided the province consents. The proposed legislative changes are intended to allow municipalities to expedite the approval of major employment projects that create jobs. To that end, the proposed amendments to the Planning Act would allow municipalities to pass “open-for-business planning by-laws” that would not need to comply with the municipality’s official plan, the Growth Plan, the Greenbelt Plan or a host of other regulations. No notice or public consultation is required before the municipality passes such a by-law, though it would be subject to provincial approval. The by-law, once approved, would not be subject to appeal.

The proposed legislation was introduced on the last day of the provincial legislature’s fall session, before an extended holiday break. The proposed legislation will be subject to review, debate and potential refinement when the legislature resumes in February 2019.

Further details on the proposed legislative changes follow.

Open-for-Business Planning By-laws

Bill 66, known as the Restoring Ontario’s Competitiveness Act, 2018 (the “Bill”), proposes a wide range of legislative amendments generally intended to reduce the amount of regulation for Ontario businesses, and thereby facilitate economic growth and job creation. The Bill, which proposes to amend many different statutes, includes amendments to the Planning Act that give municipalities new powers to pass open-for-business planning by-laws that are exempt from higher-level planning controls. According to the Bill, an open-for-business planning by-law can contain anything that an ordinary zoning by-law would contain. However, unlike an ordinary zoning by-law, an open-for-business by-law, among other things: 

• Would not need to be consistent with the Provincial Policy Statement or conform to provincial Plans such as the Growth Plan, the Greenbelt Plan or the Oak Ridges Moraine Conservation Plan;
• Would not need to conform to the municipality’s official plan;
• Could  not require the provision of public benefits through section 37 of the Planning Act (such as cash contributions, or the provision of public art or child care facilities) in connection with increases in height or density permissions;
• Would not need to conform to policies in the drinking water source protection plan for Lake Ontario; and
• Would not need to conform to provincial policy statements regarding regional transportation.

Further, a development permitted through an open-for-business planning by-law would not be subject to site plan approval under the Planning Act or the City of Toronto Act. However, as part of an open-for-business planning by-law, the municipality could impose conditions regarding detailed matters typically addressed through the site plan process, such as the location of buildings, as well as their massing and design.

No notice or public consultation is required before an open-for-business planning by-law is enacted. The municipality would simply request approval of its by-law from the province. As part of its review, the province would ensure the open-for-business planning by-law meets the following requirements, among others:

• The open-for-business planning by-law must facilitate a new major employment use, such as manufacturing or research and development. Such a by-law could not be used where the primary use permitted is residential, commercial or retail. Since the specific terms of the proposed regulation are not yet available, it is not clear what extent of residential, commercial or retail uses could be permitted as secondary uses. 
• The new major employment use must generate a certain number of jobs, depending on the size of the municipality. For example, for municipalities with a population of 250,000 or more, the new use must generate at least 100 jobs.

Once an open-for-business planning by-law is approved by the province and enacted by the municipality, it would not be subject to appeal.

A New Form of Minister’s Zoning Order?

In some ways, the effect of an open-for-business planning by-law is similar to that of an existing planning tool known as a Minister’s Zoning Order (MZO). Under existing provisions in the Planning Act, the province has the authority to exercise zoning powers that generally belong to municipalities, through the issuance of an MZO. An MZO establishes zoning permissions for the relevant lands in a manner that overrides the municipality’s zoning by-laws. Like open-for-business planning by-laws, MZOs are not required to comply with certain higher-order planning regulations, such as the municipality’s official plan and the Growth Plan. Further, no prior notice or public consultation regarding an MZO is required before it is issued, just as with the enactment of an open-for-business planning by-law.

MZOs are used relatively rarely. In a few instances, they have been used to prohibit development where the municipal zoning by-law would have otherwise permitted it. However, they have also been used to facilitate new major employment uses in certain instances, for example, where the normal planning process would have unreasonably delayed a project that had strong municipal support.

While the ultimate effect of an open-for-business planning by-law can be similar to that of an MZO, there are important differences between the two instruments. For example, whereas MZOs can be used both to prohibit and permit new development, open-for-business planning by-laws may only be used to permit new development in the form of major employment uses. Further, whereas MZOs are provincially-led and issued by the province, sometimes over the municipality’s objection, an open-for-business planning by-law would be municipally-led and enacted by the municipality, with the province’s approval. Open-for-business planning by-laws would also be sheltered from appeal to a greater extent than MZOs, thereby giving businesses greater certainty with respect to major investments in new employment permitted through an open-for-business planning by-law.

Next Steps

As noted above, the Bill was introduced on the last day of the provincial legislature’s fall session. Consideration of the Bill, including debate and potential refinement to the legislation, is expected to begin when the legislature resumes in February 2019. We will continue to provide updates as the Bill moves through the legislative process.