Bill 23: This Game of Chicken Will Have a Bad Ending [1]

Rebecca is a Partner and Principal-Heritage-Specialist at ASI, one of Ontario’s oldest and largest heritage consulting firms. She leads the firm’s heritage evaluations, impact assessments, conservation plans, and engagement programs, undertaken to support development and planning projects involving significant buildings, sites, and landscapes. She has also worked for the Province of Ontario advising on: the application and interpretation of the Standards and Guidelines for Provincial Heritage Property and municipal conservation practices adjacent to the Rideau Canal World Heritage Site.

The Ontario Government's introduction of Bill 23, the More Homes, Built Faster Act, 2022, proposes a series of significant changes to the Ontario Heritage Act (OHA). All of the proposed amendments require swift critique and analysis. Most concerning are those to Section 27 of the OHA.² These proposed changes, while incredibly substantial, are at the same time, short on substantive analysis of their potential outcomes. The amendments display a rash and rushed approach to regulatory change. The proposed changes will disrupt every community's capacity and ability to steward those significant sites and places that are important to safeguard because of the important stories they tell.

What are the Key Changes to Section 27?

The following summarizes some of the changes proposed for Section 27. It also sets out clarifying questions and critiques.³ These observations are relevant as we develop pathways forward and advocate for changes and improvements to these amendments.

Municipalities must have up-to-date versions of their Register publicly accessible on their websites.

The Ministry of Citizenship and Multiculturalism (MCM) is proposing a six-month grace period following proclamation of the amendments so that municipalities have time to update their websites.
Further clarity is needed to understand the documentation standards that will be required of publicly accessible Registers both for designated and non-designated/listed properties. This matters greatly for municipalities as they triage and assign resources to implement the proposed amendments.⁴ The long-awaited and too-often-postponed
update to the Ontario Heritage Tool Kit could be used for this purpose.
For designated property, presumably municipalities will be required to digitize and make publicly accessible the following information for all properties included on a Register, in accordance with Section 27(2): a legal description of property; the name and address of the owner; and a statement explaining the cultural heritage value or interest of the property and description of the heritage attributes of the property.
For non-designated property, clarification is also needed on the level of documentation that is required to be publicly accessible for listed properties on the Register. Section 27 (3) implies that the contents of the Register with respect to non-designated property must satisfy a minimum requirement as follows: a description of the property that is sufficient to readily ascertain the property. However, Section 27 (6) establishes an additional standard of data documentation to be issued as it relates to non-designated property, and which includes a statement explaining why the council of the municipality believes the property to be of cultural heritage value. The amendments also introduce a new standard requiring that non-designated properties meet prescribed criteria for the purposes of inclusion on a Register. Clarification and further guidance are needed to identify how this standard should be documented as part of publicly-accessible Registers.

Property owners may use the existing process established under Section 27(7) of the OHA for objecting to the inclusion of their non-designated property on the Register regardless of when it was added.

Amendments to the OHA passed in 2019 established a process for property owners to object to inclusion of non-designated/listed property on the Register for any property added to the Register after July 1, 2021, when Schedule 11 of the More Homes, More Choice Act, 2019 came into force.
The proposed amendments now enable any property owner to object to inclusion of non-designated property on the Register regardless of when the property was included on the Register.
To include non-designated property on the Register the Council had to believe the property was of cultural heritage value or interest. Guidance is required regarding what other factors a Council may consider when evaluating property owner requests to remove non-designated property from the Register.

Requirements regarding the significance criteria to determine if a non-designated property should be included on the Register.

This requirement will not be retroactive but only applicable to non-designated properties added after the amendments come into force.
MCM is signalling that the existing O.Reg. 9/06 criteria will be used for this purpose.
There is however no appeal, other than the objection process outlined above, if an owner argues that the property does not meet the new requirement.

Removal of Properties from the Register

If Council moves to designate a non-designated/listed property on the Register but the bylaw is not passed or is repealed on appeal, the property will be removed from the Register.
If Council does not issue a Notice of Intention to Designate (NOID) within two years of the amendments coming into force or, moving forward, within two years from when the property was included on the Register, the property will be removed from the Register.
Where a property is removed from the Register for any of these three reasons, it cannot be included on the Register for 5 years.

Inclusion of Non-Designated Properties on the Municipal Heritage Register and Prescribed Events

Currently, the OHA specifies that, for prescribed Planning Act events, the municipality has a 90-day limit to issue a NOID in relation to the property involved in the prescribed event.
The amendments introduce an additional requirement for municipalities in this context: at the time of the prescribed Planning Act event, a NOID can only be issued if the property was included on the Register/listed at the time of the prescribed Planning Act event.

Analysis and Discussion

Amendments summarized in items 4. and 5. will be particularly disruptive to all parties engaged in the management, development, and stewardship of land and property.

The impacts of these changes will vary dependent on each municipality's collection of non-designated/listed properties included on Registers and specific land-use planning contexts. Some municipalities have less than 100 non-designated properties and minimal instances of prescribed Planning Act events. In contrast, some municipalities have hundreds — or thousands — of non-designated properties included on their Registers and a fast-paced pipeline of prescribed Planning Act events or demolition permits.

Planning or demolition applications may intersect with properties listed on Registers, and others with properties that are not yet listed on a Register, but which contain important cultural sites, features, and lands that may be important to appropriately steward and integrate into development plans. A survey of 65 municipalities across Ontario indicates that over 31,000 properties are currently listed as non-designated properties on Registers established under Section 27.⁵

How municipalities respond to these changes will vary. Regardless, the overall result will be a destabilization of the existing system for all those who currently interact with it. Predictability will be reduced for those involved in the broad process of cultural heritage resource management including municipal planners, consultants, legal representatives, private property owners, heritage stakeholders, community representatives, Indigenous communities, and those involved in large land assemblies or asset management.

The destabilization will in part be driven by the outcome that Registers will now be highly dynamic tools. They will become chaotic repositories. Their contents will be defined by arbitrarily established 2 and 5-year cycles. Property will be added to the list, will come off due to a scarcity of municipal resources or absence of need, and then may return to the Register once the 5-year period has lapsed. The status of the 31,000 non-designated properties (and counting) will be constantly shifting dependent on where a property is in this crudely-established, rushed time cycle.

Property owners will now own land that has a more volatile and unclear set of requirements.

Properties will slide in and out of states of potential cultural heritage value or interest. Property owners and investors want to increase certainty and mitigate risk. This is best done by assessing a property’s assets or challenges and understanding how to capitalize on them for strategic and sustainable advantage. The proposed system instead presents a precarious and highly volatile framework for landowners that exposes them to greater degrees of risk. The basic logic here is also flawed, suggesting that cultural heritage value can disappear and appear based on timing stipulations.

Conclusions

The proposed amendments are based on a reckless gamble that is problematic, particularly for private property owners. The proposed amendments effectively force municipalities down a blunt regulatory pathway. The proposed system dares municipalities to designate as many properties as they can under Part IV of the OHA if they have been listed on a Register.

Some municipalities will take this route. Successful and strong Part IV designations will be brought forward, many of which would have not come forward otherwise. In many instances, municipalities will pass legitimate and substantiated designation bylaws that will be appealed to, and ultimately decided by, the Ontario Land Tribunal (OLT). This will potentially lead to more properties being designated than ever before — and substantially greater amounts of time spent defending and appealing designations before the OLT that add time and cost — and will also clog up the OLT’s docket.

It is hard to quantify or predict how many more designations will result, how many will be appealed, and the average amount of time that will pass between NOIDs and resolution. Suffice to say, there will certainly be more designations and more hearings.

But leaving those variables aside, let’s step back and acknowledge that these punitive amendments — and the effective neutering of the the province’s heritage toolkit — will force municipalities and communities to pursue a process of Part IV designation (and ensuing heritage permitting system) for any property that has some potential cultural heritage value. This is not in anyone's interest, particularly private property owners. Not all properties require or demand this level and type of management.

Many properties though, do deserve a conversation about, and basic requirements for, how to maximize sustainability and affordability, reduce carbon emissions, and integrate interesting and important cultural features into development projects.

Part IV designations are appropriate in certain instances and stand as one of Ontario's oldest and most pervasive tools for conserving significant buildings. However, there are other tools and strategies, often easier to work with, that can be used for managing heritage resources. These could include land-use planning policies, urban design guidelines, and legislating standards of practice for heritage professionals. These strategies can establish a proactive, integrated, collaborative, and accountable framework for stewarding heritage resources in the contexts of growth and critical needs for affordable housing.

Area-specific policies, secondary and tertiary plans, community planning permit systems, and zoning provisions can also create pathways for building amazing places and communities. Leveraging old buildings, features, sites, and landscapes can make development projects more sustainable and distinguished. Designing a redevelopment plan around a site’s existing and cherished assets can build social license to operate in communities resistant to, or suspicious of, change.

These processes need not necessarily be more expensive or add time to projects. A government so focused on “Ontario families who want a place to call home”⁶ should be interested in enticing municipalities into using broader tools to steward existing buildings that are valued by communities.

The Government’s agenda seems obvious here. With the range of constraints and timelines introduced, municipalities will not possibly be able to protect most properties using a Part IV designation. Thousands of properties will “fall off” municipal Registers. And future listings of non-designated properties will become a confused and daunting task. Yes, there will be some losses, but there will be many other unintended consequences here that will be problematic and time-consuming for everyone involved.

Recommendations on the proposed amendments for the Government to receive and consider:

1. Remove the broad and blunt time-requirement to designate listed properties within 2 years. If a time requirement is still contemplated, introduce a timed designation requirement and sunset clause (removal) only for non-designated/listed properties on the Register where a prescribed event has occurred. This pairs designations with situations that may warrant or benefit from them. Some municipalities may invite a sunset clause provision if it can be applied more strategically and judiciously. Some municipalities have identified a need to “delist” batches of properties due to erroneous inclusion, degradation of condition or integrity over time, and/or because listing no longer serves a useful purpose in relation to changing land-use planning contexts and types of interventions proposed.
2. If amendments continue to contemplate a 2-year designation requirement for all non-designated properties on Registers, expand the timeline to at least 5 years. This will provide somewhat more certainty and stability within the overall resulting system.
3. Provide a mechanism for private property owners to waive requirements/triggers for removing non-designated property from the Register.
4. Remove the requirement that Councils would only be able to issue a NOID where a property is included on the Register as non-designated property at the time the 90-day restriction is triggered by a prescribed event under the Planning Act. This is excessive and ineffectual regulatory over-reach that undermines good municipal practices already in place. It curtails private property rights. Some municipalities already have processes in place for including non-designated property on the Register where the Council has prioritized the property for designation under Part IV. In other instances, municipalities have designated under Part IV based on property-owner requests and where such property was not previously included on a Register as non-designated property. Data is not available demonstrating that this excessively blunt requirement is needed or beneficial. While it might appear to promise predictability, it precludes flexibility and site-specific solutions and negotiations. At the very least, MCM should consider a mechanism for waiving this requirement with consent from property owners.

Note: Comments on Bill 23 can be submitted to the Environmental Registry of Ontario (ERO) until November 24^th, 2022. Please visit https://ero.ontario.ca/notice/019-6196.

Notes

Note 1: The game of "Chicken" typically involves two drivers, with cars on a converging course, daring one another to either swerve out of the way or risk a head-on collision. Ideally, one driver swerves and the other wins. The danger, of course, is that both drivers will believe that the other will swerve first and they inevitably crash, leaving destruction and collateral damage in their paths.

Note 2: The opinions and views expressed here are my own. I want to thank and acknowledge various individuals who have shared thoughts, reactions, and/or relevant data pertaining to Bill 23 and its proposed amendments: Tamara Anson-Cartwright, Philip Evans, Alissa Golden, James Neilson, and Annie Veilleux. These exchanges have provided important opportunities for discussion and information-sharing that has in turn helped clarify my own analysis of the amendments. Thank you to Dan Schneider for providing editorial review and comment on this article. Thank you to Bryan Browne and Dan Schneider for providing editorial review and comment on this article

Note 3: The author understands the complexities, successes, and frustrations of the existing regulatory regime. Her current clients include development industry representatives, private landowners, residents associations, municipalities, school boards, and provincial agencies. She has often recommended building and/or landscape conservation to private sector clients contemplating major removals or demolitions that adversely impact heritage fabric. She has also advised municipalities when a property does not sufficiently meet heritage evaluation criteria, even in the face of political pressure to pursue a Part IV or Part V designation. She has led studies resulting in the “batch” listing of hundreds of non-designated properties and has advised municipalities to remove specific non-designated properties from Registers. Currently, she is working with multiple municipalities to identify strategies for stewarding and promoting cultural heritage landscapes and which do not involve designations under the OHA.

Note 4: Creating a publicly accessible Register that is posted to a municipal website takes time and resources. The Ontario Heritage Trust's Ontario Heritage Act Register of designated property can be leveraged to serve as a shareable open dataset that municipalities can use to meet requirements for making information about designated properties publicly accessible on municipal websites.

Note 5: This number is based on information collected and compiled by City of Toronto Heritage Planning based on a questionnaire to municipal staff of the Ontario Heritage Planners Network (HPN) and dated November 16, 2022. Currently, there is no centralized provincial repository that collects and manages data relating to the number of non-designated property within the Province of Ontario. The Province should consider the role that the Ontario Heritage Trust can play in collecting and managing data about non-designated property included on Registers.

Note 6: See announcement made by Premier Doug Ford on October 25^, 2022 regarding introduction of Bill 23, the More Homes, Built Faster Act, 2022; https://www.cbc.ca/news/canada/toronto/ontario-legislature-resume-housing-1.662858