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Bill 108 Amendments to the Education Act are now in Full Force and Effect

On May 2, 2019, the provincial government introduced the More Homes, More Choice Act, 2019 (Bill 108).  Bill 108 proposed sweeping changes to Ontario’s land use planning regime in order to help bring new housing to market sooner, thereby reducing or curbing the rise in housing prices across the province.  These changes are implemented by the amendment of thirteen acts, including the Education Act.

The amendments to the Education Act were set out in Schedule 4 of Bill 108, which was to come into effect upon Royal Assent.  Bill 108 received Royal Assent on June 6, 2019 and accordingly the amendments to the Education Act are now in full force and effect.

There are three areas of amendments to the Education Act:

  • Increased Ministerial Oversight over Land Acquisition/Expropriation:  Requiring a School Board to notify the Minister if it plans to acquire or expropriate land and providing the Minister with the opportunity to reject the Board’s plans.
  • Alternative Projects:  Providing for alternative projects which, if requested by a School Board and approved by the Minister, would allow for the allocation of revenue from education development charge (EDC) by-laws for projects that would meet the needs of the Board for pupil accommodation.
  • Localized Education Development Agreements:  Providing for localized education development agreements which would allow an owner to provide a lease, real property or another perceived benefit to be utilized by the School Board for pupil accommodation in exchange for the Board agreeing not to impose education development charges against the land.

Increased Ministerial Oversight over Land Acquisition/Expropriation. 

A School Board, like a municipality, can act as both an expropriating authority and an approval authority in acquiring property for its purposes.

The expropriation of school sites has historically been rare and the mechanism is still utilized in a minority of school site acquisitions.  However, the use of the power to expropriate to acquire school sites is becoming more common in urban areas.  The amendments to section 195, particularly the additions of subsections 195 (1.1) through (1.4) now require a School Board to notify the Minister, within a prescribed period, and in the prescribed form, of the Board’s intention to acquire or expropriate land for a school site.  The Minister then has the opportunity, within the prescribed period, to advise the Board that the proposed acquisition may not proceed. If the Minister does not so notify the Board within the prescribed time, the Board may proceed.

Subsection 195 (1.4) permits, but does not require, the Minister to prescribe the regulations referred to in subsections 195 (1.1) and (1.2) regarding the prescribed timelines for the submission of the notice to the Minister and for the Minister’s notice of denial.  No regulations have yet been prescribed.

Although the regulatory power is permissive rather than mandatory, unless time periods for the Minister’s Notice of denial are prescribed, a proposed acquisition/expropriation could be postponed indefinitely in the absence of a Minister’s response.

The absence of regulations may not prevent acquisitions, but it will require School Boards to secure the Minister’s cooperation with regard to the acquisition of a particular site.

Alternative Projects:

Most of the details regarding the type of arrangements which would constitute an Alternative Project have been left to the as yet unreleased regulations.

Without amendments to the regulations permitting the allocation of EDC funds to building (as opposed to land) costs, it is difficult to see the utility of these amendments.

Localized Development Agreements:

Given that it is unlikely that a School Board will agree to a reduction in EDC’s charged to a developer that is greater than the value of the property interest being exchanged for the reduction, there appears to be no benefit to this mechanism over an acquisition on the open market.

If it were possible to fix or pre-pay EDC obligations ahead of development, this might provide an incentive for developers to make a below market value conveyance of an interest in a school site to a School Board.

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