Canada: Bill 108 To Enact First Of Many Changes Proposed To Ontario's Environmental Assessment Act

Last Updated: June 3 2019
Article by F.F. (Rick) Coburn and Barbora Grochalova

Most Read Contributor in Canada, July 2019

On May 2, 2019, the Government of Ontario introduced Bill 108, the More Homes, More Choice Act, 2019. Bill 108 amends several environmental statutes, including the Environmental Assessment Act (the Act).

The Ministry of the Environment, Conservation and Parks (the Ministry) previously published a discussion paper to guide public consultation as part of a proposed effort to modernize Ontario's environmental assessment program. The discussion paper is available for comment until May 25, 2019.

In the meantime, Bill 108 introduces several short-term changes that are proposed while the broader environmental assessment program is considered by the Minister. The focus of the changes proposed as part of Bill 108 is to reduce the regulatory burden on low-risk projects.

Exempting Certain Undertakings from Class EAs

Proponents of projects subject to the Ontario Environmental Assessment regime are required to complete an assessment of the proposed undertaking either as an individual environmental assessment (EA), which is governed by Part II of the Act, or as a class environmental assessment (Class EA), which is governed by Part II.1. Class EAs apply to projects that are carried out routinely, and have predictable environmental effects that can be readily managed. Class EAs set out standardized procedures to be followed by a class of activities expected to cause similar effects. As long as the undertaking is completed in accordance with the conditions and procedures set out in the applicable Class EA, the proponent does not require additional approval.

The proposed changes would require Class EAs to be amended to describe undertakings which are to be exempt from the application of the Act. The projects likely to be exempt are described by the Ministry as very low-risk activities.

The proposed amendments further identify certain Crown corporations and provincial ministries who, acting as proponents, would be able to identify in the course of the early screening stage that a proposed undertaking does not require further assessment or public consultation, thereby exempting it from the application of the Act.

Bill 108 amendments also propose the following list of specific low-risk undertakings which are to be exempt from the application of the Act:

  1. Group A of the GO Transit Class Environmental Assessment
  2. Group D of the Class Environmental Assessment for Provincial Transportation Facilities
  3. Schedules A and A+ of the Municipal Class Environmental Assessment
  4. Category A of the Class Environmental Assessment for MNR Resource Stewardship and Facility Development Projects
  5. Category A of the Class Environmental Assessment Process for Management Board Secretariat and Ontario Realty Corporation
  6. Category A of the Class Environmental Assessment for Provincial Parks and Conservation Reserves
  7. Category A of the Class Environmental Assessment for Activities of the Ministry of Northern Development and Mines under the Mining Act

Limiting the Application of Part II or Bump Up Orders

Undertakings assessed under a Class EA may be subject to a Part II Order, the effect of which is to "bump up" the assessment to the more rigorous individual EA process, and have the undertaking be assessed pursuant to Part II of the Act. The request for a Part II Order could be made by a member of the public, or on the Minister's own initiative. The Minister is required to consider certain prescribed matters, including whether the undertaking differs from others to which the Class EA applies. The Minister then issues an order either requiring the completion of an EA, or denying the request. This process may be lengthy and unpredictable, and can lead to delays.

The amendments proposed by Bill 108 significantly limit the application of Part II Orders. While the Minister is required to consider the matters listed in the Act when considering a Part II Order request, the proposed amendments would give the Minister the authority to issue a Part II Order only if by doing so the Minister may prevent, mitigate, or remedy adverse impacts on existing Aboriginal or treaty rights, or on other matters of provincial importance to be prescribed by regulation. Part II Order requests that do not raise an issue related to an existing Aboriginal or treaty right or other prescribed matters would be screened out by a director of the Ministry and refused without consideration by the Minister. 

Further proposed changes limit the persons who may make a Part II Order request to those who are resident in Ontario. The provisions governing the timeline for a Part II Order are also proposed to be amended, and would require the Minister to provide reasons explaining why a decision was not made before the deadline.

Consultation Opportunity

The amendments proposed under Bill 108 are also posted on the Environmental Registry and comment period is open until May 25. In addition to the discussion paper, these amendments provide an opportunity to shape the modernization of Ontario's environmental assessment program.

The amendments to the Act are proposed to come into force when Bill 108 receives Royal Assent. Certain amendments, including the changes to the Part II Orders, are proposed to come into force on a day to be named by proclamation.

How BLG Can Help

Municipalities, public agencies, developers and other stakeholders involved in current or future environmental and land use matters should consider the implications of amendments proposed by the first reading of Bill 108. Our Environmental Law and Municipal and Planning Law groups are well positioned to assist you in understanding the implications of Bill 108 and how it may affect your interests.

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