This paper was paired with a presentation given by Nancy Smith at the Ontario Bar Association’s Ontario Legal Conference: Municipal, Planning and Environmental Law program held on February 6 & 7, 2025.
Recent Ontario Heritage Act Amendments
Over the past five years, the Province has made significant changes to the Ontario Heritage Act[1] (“OHA”), particularly as it relates to rules around the listing and designation of properties of cultural heritage value or interest, and the ability to appeal municipal-level decisions under the OHA to the Ontario Land Tribunal (“OLT”).
One change that has been a major focus for municipalities came under Bill 23, More Homes Built Faster Act, 2022[2] and relates to time limits for inclusion of properties on heritage registers.[3] This change, which came into effect on January 1, 2023, provides that non-designated properties can be listed on a municipal register for a maximum of two years. For non-designated properties that were included on the register as of December 31, 2022 (termed “legacy listed properties”), municipalities were given until January 1, 2025 to review them and determine whether each property warranted designation under the OHA. Unless the designation process was initiated (i.e. a notice of intention to designate (“NOID”) issued) for a legacy listed property by January 1, 2025, it would be removed from the register and could not be relisted for a period of five years thereafter. The stated intent of these changes was to address the interaction between heritage protections and housing supply.[4]
2024 brought further change to the heritage landscape, with Bill 200, Homeowner Protection Act, 2024[5] and the coming into effect of the Provincial Planning Statement, 2024 (“PPS 2024”). Bill 200 extended the deadline for reviewing legacy listed properties, giving municipalities until January 1, 2027 to issue a NOID before these properties must be removed from the register. The 5-year bar on relisting legacy listed properties automatically removed was also amended to commence on January 1, 2027. The Bill also provided for regulation-making authority to allow for this date to be amended again in the future. Bill 200 also introduced detailed rules as to how voluntarily removing listed properties ahead of legislated timelines and removal requirements impacts a municipality’s ability to relist. In introducing the Bill 200 amendments for consultation, the Province explained that “the limitations and restrictions on listing established through Bill 23 were silent on how these rules apply and interact if council were to remove a property voluntarily and prior to the OHA requiring that the listed property be removed from the register, creating potential uncertainty on how voluntary removal impacts a municipality’s ability to relist a property.”[6]
On October 20, 2024, the PPS 2024 came into effect, replacing both the Provincial Policy Statement, 2020[7] (“PPS 2020”) and A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019.[8] While heritage policy is not the focus of this paper, the PPS 2024 brought in a significant change that must be mentioned. Former policy 2.6.1 of the PPS 2020 required the conservation of “significant[9] built heritage resources and significant cultural heritage landscapes”. As applied by the OLT and its predecessors, a property did not have to be designated to be significant, where expert evidence supported such a finding. Policy 4.6.1 of the PPS 2024 now requires the conservation of “protected heritage property [emphasis added], which may contain built heritage resources or cultural heritage landscapes”. “Protected heritage property” as defined by the PPS 2024 only includes properties designated under Part IV or VI of the OHA and property within a heritage conservation district designated under Part V of the OHA.[10]
Historical Context
Given the significant changes to the OHA over the past five years, it seems like an appropriate juncture to look back at how this legislation has evolved since its enactment in 1975. We leave readers with the following synopsis of some of the more notable changes along the way.
1975-2005: OHA’s Early Days
- March 5, 1975: OHA enacted to allow municipalities and the Province to designate properties and districts as being of cultural heritage value or interest.
- Until 2005: designation under the OHA allowed a municipality to delay, but not ultimately prevent, the demolition of a heritage property. 180-day "cooling off" period, which was intended to allow time for municipalities and landowners to negotiate an appropriate level of heritage preservation. After the 180 days, the demolition permit would automatically issue.
- Owners could opt to simply “wait out the clock" and demolish the heritage building once the protection of the OHA had expired.
1987: Evolution Begins[11]
- 1987: Province granted the City of Toronto the ability to require that an owner obtain a building permit to construct a new building prior to issuance of a demolition permit.
- 2002: Building permit requirement extended to all municipalities.
2005: Bill 60, Ontario Heritage Amendment Act, 2005[12]
- OHA given “teeth”.
- Demolition of properties designated under Part IV: No longer a “cooling off period”. Permission of Council required and appeal rights to the Ontario Municipal Board (“OMB”).
- Alterations to properties designated under Part IV: No change to the procedure for challenging Council decisions on application to alter. Hearing before the Conservation Review Board (“CRB”), with the CRB presenting a report to Council for its consideration. Final decision remains with Council.
- Alterations and demolitions under Part V (Heritage Conservation Districts (“HCD”)): No longer a “cooling off period”. Both alterations and demolitions in an HCD now require permissions of Council and Council decision appealable to the OMB.
- Also new procedural requirements for a heritage conservation district study and Council to adopt a heritage conservation district plan at the same time as it adopts the heritage conservation district by-law, with appeal rights to the OMB for both documents.
- Building standards by-laws: Provisions added which enabled municipalities to enact by-laws to require owners of designated buildings to maintain the structures and their heritage elements. Intended to prevent "demolition by neglect”.
2021: Bill 245, Accelerating Access to Justice Act, 2021[13]
- Received royal assent on April 19, 2021
- The end of the CRB:
- Effective June 1, 2021, CRB consolidated with the Local Planning Appeal Tribunal and other land tribunals into the new Ontario Land Tribunal (“OLT”).
- Effective July 1, 2021, OHA amended to remove all references to CRB and substitute with OLT.
- Until this date, objections to proposed designations, applications to repeal by-law designating property and applications to alter designated property still went to the CRB for a recommendation report with ultimate decision by Council.
2021: Bill 108, More Homes, More Choice Act, 2019[14]
- Received Royal Assent on June 6, 2019. Amendments came into effect on July 1, 2021.
- New appeals to OLT: Properties newly subject to a notice of intention to designate (“NOID”) and applications to repeal a designation or alter a property made on or after July 1, 2021 now benefit from appeals to and binding decisions from the OLT.
- Notice & objections to listing: Owners whose properties are newly listed in heritage register now receive notice and may object, and where objection is made, council must consider the objection in deciding whether to continue to list the property.
- Deemed approvals: New applications for alteration or demolition are deemed approved should council not make a decision within specified time periods.
- Designation following prescribed events: Municipalities have 90 days to issue a NOID upon notice of a complete official plan amendment (“OPA”), zoning by-law amendment (“ZBA”), or plan of subdivision (“Draft Plan”) application, subject to certain exceptions.
- Deadline following NOID: Designations must occur within 120 days of issuance of a NOID, subject to certain exceptions.
2023: Bill 23, More Homes Built Faster Act[15]
- Received Royal Assent on November 28, 2022. The amendments came into effect on January 1, 2023.
- Listing: Imposed a higher threshold test to place properties on the register, limited how long a property can be on the register without being designated, and required the register to be accessible online.
- Previous threshold test required that Council believed property to be of cultural heritage value or interest.
- New threshold test added that the property must meet one or more prescribed criteria (identified in O.Reg. 9/06 Criteria for Determining Cultural Heritage Value or Interest). Criteria are identical to the prescribed criteria for designation of individual properties under Part IV.
- Effect is that what previously would have resulted in a designation under Part IV of the OHA is now required as minimum for inclusion on the register.
- New time limits for inclusion of properties on register. Removal can occur for two reasons: 1) if Council gives notice of intention to designate but attempt to designate fails or 2) if a property has been on the register for a period of two years. Two-year limit began to run upon proclamation (January 1, 2023) for properties listed pre Bill 23.
- Once removed from register, a property could not be re-listed for a period of five years.
- Designation:
- Took Bill 108 (90-day time limit to designate following prescribed event) a step further and limited the ability to issue a NOID on a property subject to a prescribed event (notice of receipt of a complete OPA, ZBA or Draft Plan application) to only those properties already listed on the register.
- Changes to O. Reg. 9/06 to establish that a property must meet two or more criteria in the regulation in order to be designated. Criteria substantively the same as before Bill 23, but enumerated differently.
- Heritage Conservation Districts (HCDs):
- Changes to O. Reg. 9/06 to establish that at least 25% of the properties within an HCD must meet two or more criteria in the regulation in order to be designated.
- Changes related to the Standards and Guidelines for Conservation of Provincial Heritage Properties:
- Introduced exceptions from the Standards and Guidelines for provincial properties, allowing the Minister to confirm or revise the determination of cultural heritage value or interest. Allows Lieutenant Governor in Council to exempt Crown, ministry or prescribed public body from complying with some or all of the Standards and Guidelines.
- Stated purpose: to ensure certain provincial priorities can be advanced including transit, housing, health and long-term care, other infrastructure, etc.
2024: Bill 200, the Homeowner Protection Act, 2024[16]
- Introduced on May 27, 2024, and received Royal Assent on June 6, 2024.
- Extension to the timeframe for reviewing legacy listed properties:
- Municipalities now have until January 1, 2027 to issue a NOID before these properties must be removed from the register.
- Regulation making authority also included to allow for these dates to be amended in the future, prior to their expiration.
- Voluntary removals: Detailed rules re how voluntarily removing listed properties ahead of legislated timelines and removal requirements impacts ability to relist.[17]
- For any listed property voluntarily removed on or after June 6, 2024, the five-year prohibition on listing would start from the date that property is voluntarily removed from the register.
- For properties that were added to the register as a listed property on or after January 1, 2023, (i.e., “non-legacy listed properties”) and then voluntarily removed from the register before June 6, 2024, the five-year prohibition on relisting starts as of the date that they were voluntarily removed.
- Different rules have been established for legacy listed properties that had been voluntarily removed from the register on or after January 1, 2023, but before June 6, 2024. These rules are as follows:
- All the listing rules (legislated timelines and removal requirements) would continue to apply despite the voluntary removal.
- The property could be relisted following the process set out in the OHA, so long as it is relisted prior to the application of a listing rule, including the legislated deadline of January 1, 2027. However:
- If a NOID is not issued by January 1, 2027, the property would need to be removed from the register again and the five-year prohibition on relisting would start as of this date.
- If a NOID is issued by January 1, 2027, and the notice withdrawn, deemed withdrawn or the OLT repeals or directs the repeal of the designation bylaw, the property would need to be removed from the register again as of the date of that action and the five-year prohibition on relisting would begin as of that date.
- If the property is voluntarily removed again prior to January 1, 2027, the five-year prohibition on relisting would start as of the date of the subsequent voluntary removal.
- If the property is not relisted prior to January 1, 2027, and no NOID is issued for the property by January 1, 2027, it cannot be relisted for a period of five-years beginning January 1, 2027.
- If the property is not relisted prior to January 1, 2027, but a NOID for that property is issued by January 1, 2027, and the designation does not proceed, the property cannot be relisted again for a period of five years as of the date the notice is withdrawn, deemed withdrawn or the OLT repealed or directed the repeal of the designation bylaw, as applicable.
[1] RSO 1990, c O.18 [OHA].
[2] 1st Sess, 43rd Leg, Ontario, 2022 (assented to 28 November 2022), SO 2022, c 21 [Bill 23].
[3] The key significance of a property being listed on a heritage register is that the owner is prohibited from demolishing or removing a building or structure on the property or permitting same unless the owner gives Council at least 60 days’ notice in writing. Bill 23 also limited the ability to issue a notice of intention to designate following a prescribed event (notice of receipt of a complete OPA, ZBA or Draft Plan application) to only those properties already listed on the register.
[5] 1st Sess, 43rd Leg, Ontario, 2024 (assented to 6 June 2024), SO 2024, c 18 [Bill 200].
[6] Bill 200 Consultation, supra note 4. Prior to the enactment of Bill 200, municipalities such as the City of Ottawa, took the approach of removing properties from the heritage register in advance of December 31, 2024 for the stated purpose of retaining Council’s ability to re-list properties, whereas listed properties removed by the processes under subsections 27(15) and 27(16) were prohibited from being re-listed for a period of five years (Manager, Right of Way, Heritage, and Urban Design Services, Planning, Real Estate and Economic Development. Bill 23: Implementation of Changes to the Ontario Heritage Act – Heritage Register Removal Report #1. City of Ottawa, 13 February 2024, chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://pub-ottawa.escribemeetings.com/filestream.ashx?DocumentId=166049. Accessed 27 January 2025.)
[7] Ontario, Ministry of Municipal Affairs and Housing, Provincial Policy Statement, 2020, (Queen’s Printer for Ontario, 2020).
[8] Ontario, Ministry of Municipal Affairs and Housing, A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019, (Queen’s Printer for Ontario, 2020).
[9] The PPS 2020 provides the following definition of “Significant”:
“in regard to cultural heritage and archaeology, resources that have been determined to have cultural heritage value or interest. Processes and criteria for determining cultural heritage value or interest are established by the Province under the authority of the Ontario Heritage Act.
… While some significant resources may already be identified and inventoried by official sources, the significance of others can only be determined after evaluation.”
[10] In addition to certain other property types. The full definition of “Protected heritage property” is as follows:
means property designated under Part IV or VI of the Ontario Heritage Act; property included in an area designated as a heritage conservation district under Part V of the Ontario Heritage Act; property subject to a heritage conservation easement or covenant under Part II or IV of the Ontario Heritage Act; property identified by a provincial ministry or a prescribed public body as a property having cultural heritage value or interest under the Standards and Guidelines for the Conservation of Provincial Heritage Properties; property protected under federal heritage legislation; and UNESCO World Heritage Sites.
[11] David Bronskill & Bruce Ketcheson, “Recent Developments in Heritage Planning” (Paper delivered at the Ontario Bar Association’s Institute 2013, February 7-9, 2013), [unpublished].
[12] 1st Sess, 38th Leg, Ontario, 2005 (assented to 28 April 2005), SO 2005, c 6; Bronskill & Ketcheson, supra note 11.
[13] 1st Sess, 42nd Leg, Ontario, 2021 (assented to 19 April 2021), SO 2021, c 4.
[15] Bill 23, supra note 2; Eileen Costello & Naomi Mares, “Analyzing the Legislative Changes of Bill 23 – Ontario Heritage Act” (Paper delivered at the Law Society of Ontario’s The Six-Minute Municipal Lawyer 2023), [unpublished].
[16] Bill 200, supra note 5.
[17] Bill 200 Consultation, supra note 4.
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