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Pedal to the Metal: Ontario Accelerates Transit and Highway Infrastructure Projects

October 26, 2020

On October 22, 2020, Ontario’s Minister of Transportation, Caroline Mulroney (Minister), introduced Bill 222, Ontario Rebuilding and Recovery Act, 2020 (Act) for first reading in the Ontario legislature.

The Act includes various measures designed to both expedite the delivery of enhancements to highway and public transit infrastructure, and to encourage the continued development of transit-oriented communities and affordable housing in Ontario. Consequently, the government’s proposed changes will be of interest to proponents of transit and transportation infrastructure projects in Ontario, in addition to those who own and develop property in the highway and transit corridors throughout the province.

The draft legislation builds on several previously enacted Ontario government initiatives encompassed by the Building Transit Faster Act, 2020 (BTFA) and the COVID-19 Economic Recovery Act, 2020 (CERA), both of which became law in July 2020. For more information on those changes please see our February 2020 Blakes Bulletin: Fast Track for Transit: Ontario Introduces the Building Transit Faster Act and our July 2020 Blakes Bulletin: Building on Recovery: Ontario’s Infrastructure-Related Legislative Developments.

In introducing Bill 222, the Minister is seeking to accelerate the planning, construction and delivery of major infrastructure projects in the transportation, transit and housing sectors throughout Ontario by:

  1. Focusing Beyond the GTA: While more recent transit and transit-oriented infrastructure initiatives comprised within the BTFA and the CERA have focused on projects and related developments within the Greater Toronto Area (GTA), the Act seeks to expand the key provisions from those statutes province-wide. This is a welcome development for public and private sector stakeholders with development interests in both urban and suburban infrastructure throughout the province.
  2. Accelerating Development of more Priority Transit Projects: While the BTFA focused primarily on the efficient delivery of four priority transit projects in the GTA, being the Ontario Line, Scarborough Subway Extension, Yonge North Subway Extension and Eglinton Crosstown West Extension, the Act would permit other provincial transit projects outside of the GTA to be designated by regulation as “priority transit projects”, thus affording them the same benefits of accelerated project delivery and support for faster completion as the GTA projects.
  3. Streamlining more Transit-Oriented Community Projects: The Act proposes to amend the Transit-Oriented Communities Act, 2020 (TOCA) in order to broaden the types of developments qualifying for the streamlined development process envisioned by the TOCA. Notably, developments qualifying for TOCA’s exemptions from the hearings of necessity provisions in the Expropriations Act will now include “a development project of any nature or kind and for any usage in connection with the construction or operation of a station that is part of a priority transit project, and includes a development project located on transit corridor land”. As noted above and consistent with other changes to the TOCA, priority transit projects for this purpose now include a much broader potential class of projects that may potentially align with other parts of Ontario’s transportation network, such as GO heavy rail and other light rail transit.
  4. Entering into New Types of Commercial Relationships for Transit-Oriented Community Projects: Importantly, the Act provides the Minister with new development-related powers. Through amendments to the TOCA, the Minister will be entitled to “establish, acquire, manage, participate in or otherwise deal with corporations, partnerships, joint ventures or other entities for the purpose of investing assets in, supporting or developing transit-oriented community projects related to provincial transit projects” and, by regulation, may choose to delegate such powers in whole or in part to Metrolinx or to another prescribed public body. The Act also allows the Minister of Infrastructure (with the approval of the Minister of Finance and the involvement of the Ontario Financing Authority) to borrow or manage financial risks for such purposes. Given the potential complexities of development opportunities involving both private and public sector entities, the Act also contemplates that additional flexibility for the structuring and carrying out of such investments may be supported by further regulations, including for example modifying provisions of the Corporations Act, Business Corporations Act and Corporations Information Act that apply or do not apply to any particular corporation investing in a transit-oriented community project.
  5. Enhanced Enforcement Tools for Utility Relocation: As industry participants will know, utility relocation works have historically had the potential to create material construction delays for transit projects, particularly in urban areas or other locations with greater historical development activity. As part of its suite of changes, the Act also amends the Public Service Works on Highways Act (PSWHA) in order to provide enhanced enforcement tools for provisions related to the relocation of utilities for highway projects. The changes provide that where a utility company fails to comply with certain notices or orders under the PSWHA, a judge of the Superior Court of Justice may order the utility company to comply with the order or, in the alternative, may authorize a road authority to carry out the work described in the notice.

Taken together, these measures would reduce barriers to the planning, design and construction of major infrastructure projects like highway and public transit networks, and support the growth of transit-oriented communities not just in the GTA but in the entire province.

The Act will need to pass a second and third reading before it can receive royal assent and become law.

For further information, please contact:

Catherine Doyle              416-863-4160
Christine Ferguson         416-863-3094
Mark Johnson                 416-863-3318

or any other member of our Infrastructure group.