Bill 23 and Why It Matters

Ontario Bill 23 was introduced on October 25th. A bill gets three “readings”, or opportunities for MPPs to debate it, and is often sent to appropriate committees in between for revision. It passed Second Reading on Halloween, and is currently at the Standing Committee on Heritage, Infrastructure and Cultural Policy. That means there’s a chance for it to be altered before it gets presented to the Legislature for a final vote.

This blog is about municipal issues, but municipalities are a creature of the Province: all of a municipal government’s authority and procedures comes from the provincial Municipal Act, as does most funding that doesn’t come from property taxes or development charges. The Province shapes our context and the tools we have for addressing it. And in Bill 23, they change a lot of those.

I’m breaking this into three posts, just for length. This post will focus on power; the second will look at environmental deregulation and the latest attempt to open the Greenbelt for development; and the third will focus on how municipalities are undermined, and what you can do to address all of this.

The Character of Bill 23

Before I even get into the specific things it changes, I want to comment on the sense of hostility that many people feel from this bill because of the way it does what it does:

• It makes major changes to municipal authority and operations, but it was introduced the day after the municipal elections. No municipal officials could really even comment on it officially, as there were no sitting Councils; and it could not be addressed or debated during the municipal election, even though it dramatically changes what municipal officials are capable of doing. It was sprung on municipalities when they couldn’t do anything about it.
• It undermines municipal decision-making, concentrating more power in the provincial government on a massive scale.
• It breaks promises that Doug Ford made, broke, and remade before.
• It seems blatantly corrupt. I know that’s a serious charge, and I’ll unpack why it seems that way in the second post.

For all of these reasons, many of us are reeling from this bill. But what does it actually do?

Concentrating Power

Here’s the first paragraph of the official summary of the Schedule 1, i.e., the first thing you read in Bill 23:

“The Schedule amends section 111 of the City of Toronto Act, 2006 to give the Minister the authority to make regulations imposing limits and conditions on the powers of the City to prohibit and regulate the demolition and conversion of residential rental properties under that section.”

Keywords: “to give the Minister the authority…imposing limits and conditions on the powers of the City….” This is part of a pattern of concentrating power over municipal decision-making that the Ford PCs have been engaged in for years. Globe and Mail subscribers may remember an Editorial about it: “Doug Ford is Premier of Ontario. Why does he want to be the Mayor of Toronto?” But it isn’t just about the City of Toronto, they take this approach to all other municipalities in Schedule 4, which amends the Municipal Act. Here’s a list of all of the other ways this bill establishes new provincial authority over lower-level authorities, mostly to control their Boards and decision-making bodies.

• Schedule 2 expands on control the Ford PCs have already established over Conservation Authorities in 2020 (see Schedule 6 here). While the Minister is already able to overrule CAs and issue his own permits, Bill 23 would allow the Minister to simply change the regulations: “the Minister may make regulations limiting the types of conditions that may be attached to a permission or permit.”
  
  Speaking of concentrating power re: Conservation Authorities, those 2020 changes also require that 70% of a CA’s Board of Directors be composed of Municipal Councillors, and gives municipalities control of funding that CAs used to get from the Province. How can CAs effectively regulate municipalities if municipalities control the CA’s Board and budget?
  
  At the same time, Ford is also talking about expanding the “Strong Mayor” powers he’s given to Toronto and Ottawa to other municipalities, explicitly for the purpose of giving the Mayor the ability to veto Council if Council decides against housing development. So Council controls the CA, the Mayor controls Council, and the Minister can overrule the CA. (Thankfully, Mayor Ostrander has said publicly that he wouldn’t use “Strong Mayor” powers, and I know that he supports the actual function of CAs. This shouldn’t affect us here in Brighton as much as it might affect folks elsewhere.)
• Schedule 5 changes the New Home Construction Licensing Act, 2017 to function via the Minister’s powers instead of by regulation, i.e., the Minister doesn’t need to use established rules to regulate the Board. It also introduces a program that allows people adversely affected by substandard builds to benefit from fines levied against those builders (good!), but includes a clause that gives the Minister authority over “any aspect of the policy.” (Micromanage much?)

• Schedule 6 amends the Ontario Heritage Act to “permit the Minister to review determinations made by a ministry or prescribed public body” – i.e., the Minister can overrule Heritage designations. It also allows the government to exempt itself from the Ontario Heritage Act if “such an exemption could potentially advance one or more provincial priorities.” Which is to say, if the government of the day wants it bad enough, they can just ignore the rules.
• Schedule 7 gives the Minister authority over the timelines of the Ontario Land Tribunal (OLT), which is where a developer can appeal decisions by municipalities or conservation authorities that might prevent them from building. It also gives the OLT the ability to dismiss appeals without a hearing on the basis of “undue delay,” and allows the government to force the OLT to prioritize certain types of cases. So if a developer wants to appeal a CA’s or Council’s decision to not allow for development, the Province can order the Tribunal to fast-track the case, and then throw it out if it isn’t resolved in a timeline of the Minister’s choosing, making the “unsuccessful party pay a successful party’s costs.”
  
  For context: municipalities and planners already view a trip to the Ontario Land Tribunal as a lost cause. This doubles down on that, making it harder for a municipality to be adequately prepared to defend its decision before the Tribunal, and more expensive to lose.
• Schedule 8, on the Ontario Underground Infrastructure Notification System Act 2012, gives the Minister the authority to appoint the Board Chair, to appoint an Administrator that can dissolve the Board, and specifies that the Minister’s orders “prevail” over the corporation’s bylaws and resolutions. More typical wording for this type of clause is “If there is a conflict … the prescribed standards and requirements prevail.” I.e., if someone makes a deal that goes against the rules, the rules take precedence. In this change, if someone makes a deal that goes against the rules, the Minister prevails.
• Schedule 9 streamlines the Minister’s ability to amend a municipality’s Official Plan: “eliminate certain procedural steps to which the Minister’s power to make orders is subject.” It also adds a clause “to give the Minister the power to make regulations governing transitional matters.” That’s a very bland way of saying that the Minister can decide on any planning matter that’s currently in process – i.e., if any municipalities are amending their Official Plan, the Minister can decide which changes go through and which do not. (Given how quietly this bill was introduced, and how quickly it is proceeding, it’s a big gotcha on municipalities.)
• Schedule 10 introduces The Supporting Growth and Housing in York and Durham Regions Act, 2022, which is all about building specific wastewater infrastructure as quickly as possible. Along with gutting environmental protection (which will have a whole post, up next) it includes the clause “The Minister may require removal of obstructions to the projects.” It refers to physical obstructions, but that quoted phrase could be used to sum up the whole bill.

They’re not just changing the rules of other jurisdictions to suit their priorities, undoing past provincial mandates and structures, but they’re also including a huge number of clauses that give them discretionary control over those other jurisdictions, just in case.

Keep reading in part 2 of this post to see how they intend to build in the Greenbelt.