APRIL 21ST UPDATE:
Today, on April 21st, the Province issued a special interpretation bulletin to explain Regulation 149, found here. Since April 15th when the regulation was filed, lawyers have debated the proper interpretation of the Regulation. Our interpretation was set out in our blog of the same date, included below. The ambiguity created by the Regulation has now been clarified by the Province.
This is welcome news for any municipality trying to process planning applications during the crisis.
Municipalities can elect not to process applications during the emergency and no applicant may file an appeal for failure to make a decision – that much was clear before.
For municipalities that elect to make decisions during the emergency, the notice of decision should be given under the normal timelines. Limitation periods for appeals of decisions made after April 15th will follow the normal Planning Act process. Appeals filed during the emergency will still not be processed by the LPAT (and those decisions will not be final) but for applications that are not appealed, the decision will be final. This allows municipalities to process and make decisions on Planning Act applications during the emergency and for those decisions to be final where no appeal is filed.
Any notice issued during the February – April 15th time frame set out in the Regulation must be re-issued in order to restart the appeal period. This is necessary because of Regulation 73/20 that suspended all limitation periods.
This is not how we interpreted Regulation 149, but this is one of those rare times when we are pleased to see our opinion corrected by the Province. We encourage all municipalities to review the link to the bulletin carefully to determine how specific timelines are affected by the regulation. We caution that this Bulletin is not a Regulation, and therefore is not the law, but it will provide much needed clarity to the Regulation and municipalities are entitled to rely on the Bulletin in the absence of a specific legal opinion to the contrary.
Original Post –
On April 15, 2020 the Province published Regulation 149/20 to establish special rules for Planning Act applications related to appeal periods and notices of decision. We were hoping for guidance to allow the planning process to continue and to establish innovative methods to keep applications moving forward. Instead, the Province has confirmed our earlier interpretation of Regulation 73/20 – all limitation periods in the Planning Act are effectively suspended. The difference is that this new Regulation makes it clear that it applies to the Planning Act – no more confusion, just no solutions.
The Regulation expressly states that Regulation 73/20 does not apply – and is deemed to never have applied – to the Planning Act. Regulation 149/20 is the only Regulation that affects limitation periods under the Planning Act during the COVID-19 emergency.
If you gave notice of a decision on or after February 26, 2020 and before April 15, 2020 the Regulation deems that notice to NOT have been completed. The notice must now be given within 15 days after the emergency is terminated.
After March 2, 2020 and before April 15, 2020, any notice that was required (whether it was completed or not) is ineffective and must be given again within 15 days after the emergency is terminated. Any notice that has not been given before April 15, 2020 must be given within 15 days of the emergency being terminated.
The notices that these rules apply to are:
- 17(23 and (35);
- 34(10.9) and (18);
- 51(37) and (45);
- 53(17) and 24); and
- 10(13) of Regulation 173/16 (Community Planning Permits)
For decisions under section 45 made after February 26, 2020 and before April 15, 2020, the Committee of Adjustment shall send out the notice of decision not later than 10 days after the emergency is terminated. The notice of appeal deadline is 20 days after the notice is served. The Regulation contains the precise language that must be contained in the notice and specifies the effective date of service for different types of service.
It is important to note that this Regulation does not prohibit public meetings or decisions under the Planning Act; municipalities may still hold public meetings (if they conform to the prohibition on public gatherings and comply with the requirement to afford people an opportunity to make representations at the public meeting). Municipalities may also still issue notices of decision, and may do so before the emergency is terminated (knowing that a further notice of decision is still required after the emergency is terminated). The decision will not be effective until after the appeal period lapses, which is now extended until after the emergency is terminated.
A notice of appeal may still be filed at any time up to the date of the extended limitation period. Appeals for failure to make a decision within the prescribed time period filed after March 17, 2020 and before April 15, 2020 are deemed NOT to have been filed.
The period of time the emergency is in place is also not counted in calculating the 1 year period within which conditions of a consent must be satisfied (s. 53(41)) or the 2 year period of time to register the deed after the certificate of official is issues (s. 53(43)). Similarly, the time periods for subdivisions (notice of completion and registration after final approval) are extended for the duration of the emergency. Lapsing provisions contained within draft plan of subdivision approvals are not suspended by this Regulation and will continue to apply unless extended by the municipality. Given the new direction that Regulation 73/20 is deemed not to have applied to the Planning Act, municipalities that were relying on that Regulation as authority to suspend lapsing provisions must now expressly extend such conditions.
If you have any questions about how to proceed in these
uncertain times please give us a call at 613-542-9814. Our team is able to fully
support your needs remotely, as needed.
You can find updates and information on COVID-19 and how it is impacting our community at our resource page here.