Warning: As a result of further Ministerial Orders issued by the Minister of Municipal Affairs, this Article is no longer current and should not be relied upon. An updated article reflecting the most current information can be found here.
On March 25, 2020, Ministerial Order 022/20 (the “MO”) was issued by the Minister of Municipal Affairs pursuant to the Minister’s power to alter dates and time period (MGA, s 605). The MO extends a number of timelines in the MGA. On the same day, the Lieutenant Governor in Council issued Order in Council 099/2020 which enacted the Meeting Procedures (Covid-19 Suppression) Regulation to allow for electronic meetings (the “Regulation”).
This article and the information herein is current as of April 3, 2020. However, the situation is rapidly changing; therefore, before relying on this article please confirm whether any additional Ministerial Orders have been issued revising these deadlines. As the situation evolves, it is possible the Minister of Municipal Affairs may amend these extensions.
(2) Streamlining Approvals
One way to streamline subdivision or development approvals is to review who has the authority to make subdivision and development approval decisions. For example, if the subdivision authority or development authority in your municipality is the Municipal Planning Commission (the “MPC”) or in the case of subdivision, Council, Council may want to consider delegating approval powers to a designated officer to facilitate more timely approvals (MGA, ss 623 and 624). We suggest that if Council decides to delegate subdivision or development authority to the designated officer, the powers are delegated to the CAO who can further subdelegate (MGA, 209). Practically speaking, delegating to the CAO will allow the CAO to further subdelegate on the basis of the CAO’s knowledge of administrative resources and availability.
If your subdivision authority or your development authority is established in the land use bylaw (the “LUB”), Council will need to have a public hearing to amend the LUB (MGA, s 692); however the Regulation makes it possible for Council to conduct a public hearing electronically. If the subdivision authority or development authority is established in a separate bylaw, Council can simply amend the bylaw as required.
Another way to streamline approvals that are made by the MPC is to review your MPC’s procedures. Some MPCs have procedures akin to a hearing where the applicant and other members of the public are allowed to make submissions. There is no right for the applicant or members of the public to make submissions to the MPC; therefore, it may be possible to limit submissions to only allow a report from the subdivision or development authority and these may be even further limited to email submissions.
Any changes Council makes to streamline approvals can be temporary or limited in response to the current pandemic. Ultimately, any changes will require a careful review of the MO, your municipality’s bylaws and your delegations in order to determine the best plan forward for your municipality. You may need to seek legal advice to ensure any proposed changes are consistent with the MO, the MGA, and the requirements of procedural fairness.
(3) Notable Extensions
The MO has extended a number of timelines. The notable ones in respect of subdivision and development are listed below:
a. Deem Application Complete (MGA, s 653.1(1)) – The 20 days to deem a subdivision application complete has been extended to October 1, 2020.
b. Application Moratorium (MGA, s 656(3) – The 6 month moratorium on resubmitting an application that was refused has been extended to October 1, 2020. Although the imposition of this moratorium is discretionary in the MGA, your LUB may make it mandatory. Nonetheless, if it is imposed, the timeline has been extended.
c. Submission and Registration of Plan of Subdivision (MGA, s 657(1) & (5)) – The timeline to submit a plan of subdivision or register a plan has been extended to October 1, 2020. This means that there is no need to go to Council for an extension.
d. Deem Application Complete (MGA, s 683.1(1)) – The 20 days to deem a development application complete has been extended to October 1, 2020.
e. Make a Decision on a Development Application (MGA, s 684(1)) – The 40 day timeline to make a decision has been extended to October 1, 2020.
(4) MPC Meeting, Public Hearing or SDAB Hearing – How to Do It
The Meeting Procedures (Covid-19 Suppression) Regulation (the “Regulation”) was enacted on March 25, 2020 to facilitate electronic meetings and hearings. Meetings are defined to include hearings. Some of the highlights of the Regulation are listed below:
a. Electronic Meeting – Entire meetings and hearings may be held electronically, namely by teleconference or live streamed broadcast (Regulation, s 3).
b. Submissions – If members of the public were normally entitled to make a submissions, they should be able, before and during the meeting, to make submissions by email or any other method that Council or the board considers appropriate (Regulation, s 3(1)(b)).
i. This means Council, the MPC and the SDAB may need to review their procedures and decide how and when they will accept submissions.
ii. There is no right that the public can participate in a Council meeting, a council committee meeting or an MPC meeting; there is only a right to be present (MGA, s 198). The Regulation echoes this provision and only provides that the public must be able to hear the meeting (Regulation, s 3(1)(a)).
iii. The right to participate in public hearings and a SDAB hearings is unchanged so Council will have to facilitate participate as noted above.
iv. Again, changes made to accommodate electronic participation may require resolutions of Council or amendments to bylaws, depending on how things are established in your municipality, and these can be drafted so they are temporary.
c. Attendees – For a meeting, the CAO or designated officer must attend electronically and for a hearing the chair or vice chair must attend electronically (Regulation, 3(1)(c)).
d. Closed Meeting – Meetings or hearings can be restricted or suspended to close to the public (Regulation, s 3(3)(a)).
e. Meeting Information – If information has to be made available to the public or for public inspection, it can be made available electronically on the website where the information is likely to be easily found or if requested by a person, by sending it by email, mail or facsimile (Regulation, s 4).
f. Quorum – Where quorum cannot be constituted due to members being in quarantine, quorum is constituted by the number of members not in quarantine, if that number is 2 or more (Regulation, s 6). Quarantine includes any self isolation and self quarantine as a result of COVID-19 or recommendations of the Chief Medical Officer or the World Health Organization relating to COVID-19.
g. Notice – Notice of a meeting or hearing must still comply with notice requirements specified by Council (MGA, s 196). If your Council has adopted an Electronic Advertising Bylaw (MGA, s 606.1), you may have additional options for advertising. Notice must state the electronic means by which the meeting or hearing is to be held and give the information necessary for the public to access the meeting (Regulation, s 3(2).
h. Public Hearing – Council is deemed to have met its obligation to hear people (MGA, s 230(4)) if the public hearing is held in accordance with the Regulation (s 3(3)(d)). Council is also deemed to have met its obligation to consider representations (MGA, s. 230(5)) if Council allows submissions in accordance with the Regulation (s 3(3)(e)).
i. Public Hearing Notice - The Regulation has made no change to the requirements to provide notice of a public hearing in accordance with MGA sections 606 and 230(2)(a). The MO has extended the notice provisions but the impact of this extension is unclear and may be clarified in a future Ministerial Order.
With respect to electronic meetings or hearings, it is important to consider the limitations and challenges with technology (dropped called, inability to call in, data issues). If there are issues with technology that limit access or participation, it may be necessary to adjourn or postpone a meeting or a hearing in order to ensure procedural fairness and insulate your municipality from a challenge to the passage of a bylaw, resolution or decision on the grounds that the process was unfair.
(5) Appeals to SDAB and Court of Appeal – Significant Issues with Extensions
The MO has extended the following timelines to October 1, 2020:
1. The 14 days to appeal the decision of a subdivision authority (MGA, s 678);
2. The 21 days to appeal the decision of a development authority (MGA, s 686);
3. The 30 days within which a SDAB must hold a hearing after receipt of a notice of appeal (MGA, ss 680(3) and 686(1);
4. The 15 days within which a SDAB must issue a decision after hearing a meeting (MGA, ss 680(3) and 687(2); and
5. The 30 days within which a person must file an appeal to the Court of Appeal after the SDAB issues a decision (MGA, s 688(2)).
Although filing an appeal to the SDAB is to be a stay of the subdivision or development approval in some municipalities, the MO now extends the stay to October 1, 2020. Even if filing an appeal to the SDAB is not a stay of approval, the extended appeal period may having a chilling effect on development as developers may not want to make any investments while the risk of appeal is still live. Importantly, even if one affected party files an appeal shortly after an approval, the SDAB cannot hold a hearing until the appeal period has expired, which is now October 1, 2020.
As noted at the beginning of this article, the situation is evolving and timelines discussed in this article may change. Please consult legal counsel to confirm whether additional Ministerial Orders have been issued revising this information.
Should you have any questions with respect to this bulletin, or if you would like more detailed information, please contact Alifeyah at: 780-497-4877 or email@example.com.