Since 2019, the Province has brought forward numerous bills addressing matters of land use planning, development and municipal regulatory powers. With names such as “The More Homes, More Choice Act, 2019” (Bill 108, 2019), “The More Homes Built Faster Act, 2022” (Bill 23, 2022), “The More Homes for Everyone Act, 2022 (Bill 109, 2022), “The Homes you Can Afford in the Communities You Love Act, 2024” (Bill 156, 2024) and the “The Homeowner Protection Act, 2024” (Bill 200, 2024) the focus of the Province has been clear: building more housing to relieve the housing crisis in Ontario.
Heritage conservation has not been immune, with changes to the Ontario Heritage Act (the “OHA”) arising through Bills 108, 109, 23 and 200. The OHA provides a legislative framework for the identification and protection of cultural heritage resources and archaeological resources in the province. The OHA gives the province and municipalities powers to identify and protect properties of cultural heritage value or interest through the designation of individual buildings (s. 29), the designation of heritage conservation districts (s.39), and by listing individual properties on a Municipal Heritage Register (s.27(3)). The most significant change to the OHA as a result of the Province’s policy focus relates to non-designated properties listed on a municipality’s Municipal Heritage Register (the “Heritage Register”).
These changes are of particular note in the City of Ottawa, which has one of the largest Heritage Registries in the province, largely identified through its City-wide Heritage Inventory Project which began in 2017. In June of this year, there were approximately 4,600 non-designated properties on the Heritage Register. As a result of the changes described below, this number has since been reduced to 3,800.
Non-designated properties listed on the Heritage Register have less protection than the designated properties that are listed. For example, there is no need to obtain a heritage permit to make alterations to non-designated listed properties. The main protection for non-designated listed properties is that Section 27 (9) of the OHA requires property owners to provide 60 days’ notice, in writing, of their intent to demolish. This notice period gives the municipality the opportunity to take a closer look at the property, to negotiate with the owner to save the building or to propose its designation under Part IV of the OHA, if warranted.
From the municipality’s perspective, including as many properties as possible on the Heritage Register was a way to create certainty around the municipality’s heritage resources. From a property owner or developer’s perspective, being included on the Heritage Register could be seen as an impediment to redevelopment and the potential for intensification, as another piece of red tape to be removed, an unnecessary delay in the redevelopment process.
Statutory timeline for legacy listings
Until Bill 23 received Royal Assent on November 28, 2022, there was no time limit on how long a non-designated property could remain listed on the Heritage Register. In Ottawa, many properties had been listed for 5 years or longer. Bill 23 introduced a statutory timeline for “legacy” listed properties included in their heritage registries as of December 31, 2022. It required legacy properties for which Council had not issued a “Notice of Intention to Designate” (“NOID”) under the OHA before December 31, 2024, to be removed from the Register and not to be re-listed for a period of five years. In June 2024, Bill 200 extended this deadline from December 31, 2024 to January 1, 2027.
Bill 23 placed similar limitations and restrictions on properties listed on or after January 1, 2023. These properties can only remain on the register for two years. If no NOID is issued within this period, the property must be removed and cannot be re-listed for five years. The two-year timeframe begins on the date the property is listed, and the five-year prohibition against re-listing starts after the two-year period ends.
This timeline is seen by some as having the effect of eliminating the Heritage Register as a tool to recognize and monitor properties of heritage interest over the long-term. The listing of non-designated properties on the Heritage Register now serves only as a temporary protection measure leading either to their designation under Part IV of the OHA, or their removal from the Heritage Register for 5 years.
Updated threshold test
Bill 23 also created a new threshold test for listing a non-designated property on the Heritage Register. Ontario Regulation 9/06 was amended to prescribe nine criteria for determining whether a property is of cultural heritage value or interest, such as being “a rare, unique, representative or early example of a style, type, expression, material or construction method”, or having “design value or physical value because it displays a high degree of craftsmanship or artistic merit”, or it demonstrates or reflects “the work or ideas of an architect, artist, builder, designer or theorist who is significant to a community.”
The criteria apply to individually designated properties, and to properties added to the Heritage Register on and after January 1, 2023, but not to non-designated properties listed before January 1, 2023. For non-designated listed properties, Council must believe that the property is of cultural heritage value or interest, and it must meet one or more of the nine enumerated criteria.
The NOID Process
Prior to designating a property under Part IV of the OHA, municipalities are required to consult with the Built Heritage Committee. The NOID must be served on the property owner and must be published in a newspaper with general circulation.
Any person may object to the proposed designation within 30 days of receiving the NOID. Upon receipt of an objection, Council is required to consider the comments raised and decide whether it will withdraw the NOID. This decision must be made within 120 days after the original NOID was served.
If Council decides not to withdraw the NOID, it must pass a by-law designating the property within the same 120-day period.
Any person who objected to the NOID is entitled to appeal the designating by-law to the Ontario Land Tribunal (“OLT”) within 30 days after it is passed. The OLT is empowered to repeal the by-law, amend the by-law as it considers appropriate, or dismiss the appeal without amending the by-law.
The Effect of Designation
Once a property is designated under Part IV of the OHA, no alterations can be made that are “likely to affect the property’s heritage attributes” as described in the designating by-law, unless a heritage permit is obtained from Council. A permit is similarly required to demolish or remove the building, or any of the identified heritage attributes.
Conclusion
While the amendments to the OHA aim to streamline processes, enhance transparency, and support Ontario’s economic development goals, they also present challenges to long-standing heritage conservation efforts. Municipalities, property owners, developers, and heritage advocates now must navigate a more complex legal environment where the balance between development and preservation has shifted.
For municipalities, the legislative changes mean tighter timelines, greater accountability, and increased pressure to make swift decisions on heritage matters. For property owners and developers, the changes offer more clarity. For heritage advocates, the changes raise concerns about the erosion of protections and the potential loss of significant cultural and historical assets. As Ontario continues to grow and evolve, the ongoing balancing of these competing interests will shape the future of the province’s heritage preservation framework.
If you receive a NOID and do not agree with the municipality’s assessment of the heritage attributes of your property, reach out to a member of Soloway Wright’s Municipal, Land Development & Expropriation group to discuss.
About the Author: Krista Libman is an associate in Soloway Wright’s Municipal, Land Development & Expropriation group and is located in Ottawa. Krista is a Registered Professional Planner with extensive municipal experience.