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F O R B U I L D I N G O W N E R S , A S S E T A N D P R O P E R T Y M A N AG E R S

VOL. 27 NO. 1 • MARCH/APRIL 2020

NOVEL TIMES COVID-19 UPENDS 2020

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TABLE OF CONTENTS

CONTENTS 06

COVER STORY

ONTARIO DELAYS NEXT PROPERTY TAX CYCLE Real estate groups welcome decision to postpone this year’s reassessment

14 IN THIS ISSUE

FLANKING FORMULA

PLANNING ACT TIMELINES ADJUSTED

Building code changes fine-tune soundscape calculations

Ontario addresses development approvals and appeals during state of emergency

ELECTRICITY PRICES FLOUT SLIDING DEMAND

SHIFTING ENERGY DEMAND

Global adjustment climbs as energy loads plummet

Significant GHG emissions reductions projected

“APPLICATION OF NEW VALUES CONVENTIONALLY BRINGS A NUMBER OF CHANGES FOR DIFFERENT ASSET TYPES AND, GIVEN THE CHALLENGES THAT HAVE NOW ARISEN, IT WOULD JUST BE AN ADDED STRESS AT A TIME WE DON’T NEED IT.” BROOKS BARNETT, DIRECTOR, GOVERNMENT RELATIONS & POLICY, REALPAC

PROPERTY TAX

ONTARIO DELAYS

NEXT PROPERTY TAX CYCLE Real estate groups welcome decision to postpone this year’s reassessment BY BARBARA CARSS

GTA & BEYOND ■ MARCH/APRIL 2020

ntario property owners will have one less shifting tableau to contemplate with the postponement of this year’s planned reassessment, which also delays a new four-year property tax cycle that had been slated to begin in 2021. The move was announced earlier this spring in the provincial Fiscal and Economic Update among several measures in response to the COVID-19 outbreak, but additionally opens a window to adjust the mechanics of the assessment process itself. “This postponement will also provide an opportunity to better reflect the advice received through the Property Assessment and Taxation Review that is currently underway,” the fiscal update states. “Through this review, the government is seeking stakeholder input to explore opportunities to support a competitive business environment and enhance the accuracy and stability of property assessments. The feedback received during this review will help to inform the development of policies for the next reassessment.” In the interim, the valuations used to calculate ratepayers’ portion of the property tax burden during the 2017-2020 tax cycle will remain in place for next year. Those are based on property values as of January 1, 2016. The next cycle, originally scheduled for 2021-2024, was to have introduced new valuations based on property values as of January 1, 2019. “That’s written in the legislation as it is now worded,” notes David Gibson, a property tax consultant and Director with Yeoman & Company Paralegal and Professional Corporation. “However, the Province may decide to use an alternative baseline – maybe even something like July 1, 2020 rather than January 1, 2019 or January 1, 2020.” That would mean setting side an exercise that is already largely completed. “MPAC (Municipal Property Assessment Corporation) would have issued new assessments for more than five million properties beginning this spring,” Ontario’s fiscal statement reported. However, real estate industry advocates welcome the move. “We think, generally, that the postponement of the new assessment cycle is a good plan,” says Brooks Barnett, Director of Government Relations and Policy with REALPAC. “Application of new values conventionally brings a number of changes for different asset types and, given the challenges that have now arisen, it would just be an added stress at a time we don’t need it.” “We applaud the move in that it brings stability,” concurs Tony Irwin, President and Chief Executive Officer of the Federation of

PROPERTY TAX Rental-housing Providers of Ontario (FRPO). “I think we all agree, in times of crisis, stability is quite important.” ASSESSMENT AND TAX REVIEW REALPAC, which represents many of Canada’s most prominent commercial real estate portfolios, has been one of the stakeholders participating in Ontario’s in-progress assessment and property tax review and is well versed in the fallout from valuations calculated on the “highest and best use” of the property. Where previously a couple of dozen properties would typically experience a dramatic spike in assessed value related to what could theoretically be built on them, Toronto’s condo-building boom has pushed that tally into the range of 1,500. “We started a couple of years back seeing really big swings in assessment in the commercial market in Toronto and the numbers have ballooned,” Barnett observes. “We are very supportive of the government’s voluntary review of the assessment regime.” For now, most commercial and multifamily landlords have more pressing priorities than pondering a new baseline date for reassessment. “We are waiting to see what

happens [when rent is due], and watching to see all the different government programs roll out and how effective they are,” Irwin says. Both he and Barnett agree it’s too early to have a sense of what a preferred baseline date might be. In future, though, Barnett suggests the scope of Ontario’s assessment and property tax review may need to widen further and possibly include the federal government. “What we need to focus on is a stimulus for the economy and the industry,” he reasons. “Property tax is one of the biggest government fees the commercial sector pays. If we are trying to keep the sector humming, and there are ways to leverage the property tax, this is a conversation worth having.” FILING DETAILS For property owners who were in the midst of filing a request for reconsideration (RfR) with MPAC or an appeal to the Assessment Review Board (ARB) before COVID-19 interrupted business as usual, there are some new administrative details. The March 31 deadline for submitting a RfR has now been extended until 15 days after

Ontario’s state of emergency has been lifted, although Gibson advises applicants they can proceed ahead of that date. “Everything is online and MPAC is working from home,” he says. Similarly, an ARB memorandum issued in late March instructed prospective filers to meet the original deadline, while also acknowledging potential for an extension. “All appeals are required to be filed by the March 31, 2020 deadline. As the majority of appeals are filed electronically, the Board expects that this will have a minimal impact for the overall system, however, in the event that you are unable to meet that deadline, you will be permitted to file your appeal within 15 calendars after the (provincial) Order has been lifted,” it states. Teleconference and written submission ARB hearings will proceed on schedule during the current work-from-home period. New hearings will be scheduled for a date after May 19, 2020. Outstanding tax appeals from 2019 that have not been decided by March 31 will be automatically pushed to 2020 with no requirement for appellants to formally resubmit the appeal or pay additional fees. ■

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PLANNING & DEVELOPMENT

FLANKING FORMULA Building code changes fine-tune soundscape calculations

equirements for gauging the soundscape in newly constructed buildings are evolving as amendments to the Ontario building code came into force on January 1. Developers will no longer have to meet a challenging standard for the comprehensibility of voice communications systems, and they can take an alternative approach to calculating sound transmission between dwelling units that is considered a more accurate evaluation of how sound reaches and affects building occupants. Code specialists predict the latter amendment, opening up the option for the Apparent Sound Transmission Class (ASTC) rating, will one day become the mandated method. This accounts for what’s known as flanking — sound associated with shared building systems and components, such as ducts and pipes, or anything that might be attached to a partition between rooms or units. For now, though, the incumbent Sound Transmission Class (STC) rating, which is a simpler measurement of a wall, floor or ceiling’s ability to muffle sound, continues to be recognized. “In future, I think they will want to go totally with the ASTC,” Alek Antoniuk, consulting architect with CodeNews Consulting Corp. and the former manager of code development for Ontario’s Ministry of Municipal Affairs and Housing, told seminar attendees at The Buildings Show in Toronto late last year. “It’s more complex than a straight STC, but that’s the way the world is going.” ASTC debuted in the 2015 edition of Canada’s model national building

GTA & BEYOND ■ MARCH/APRIL 2020

THE AMENDMENT RESCINDING THE REQUIREMENT THAT VOICE COMMUNICATION SYSTEMS PERFORM AT 0.70 ON THE COMMON INTELLIGIBILITY SCALE (CIS) RESPONDS TO WIDESPREAD FAILURE TO MEET THAT SCORE. code. In support, the National Research Council developed a software tool to help builders and designers calculate direct and flanking sound transmission, which is freely available online. The move to adopt ASTC and a plethora of other amendments into Ontario’s code reflects an ongoing agenda to harmonize the national and provincial codes as much as possible. Still, Ontario’s code has always varied to some extent from the national model and has often been seen as a leader in accepting innovation and/or introducing more stringent performance requirements. The most recent changes, outlined in a regulation published in May 2019, are in lieu of an expected 2018 edition of the code, which had been prepared but not yet adopted prior to that year’s provincial election. Instead, the new government invoked a host of amendments tallying to 1,220 replacement pages in the 2012 code.

“It practically replaces the whole code, but is still an amendatory code,” Antoniuk said. An amendment rescinding the requirement that voice communication systems perform at 0.70 on the common intelligibility scale (CIS) responds to widespread failure to meet that score. The benchmark — which equates to the average listener being able to comprehend 80% of words and 95% of sentences delivered through the system — was added to the 2012 Ontario code following its introduction in the 2010 national code. “It was found to be an unachievable target,” Antoniuk reported. Future residents of newly constructed condo and apartment buildings may also notice a quieter gush of water from bathroom taps. As of January 1, the maximum flow rate for lavatory faucets in residential occupancies has been reduced from 8.35 to 5.7 litres per minute. ■

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ENERGY MANAGEMENT

ELECTRICITY PRICES

FLOUT SLIDING DEMAND Global adjustment climbs as energy loads plummet

BY BARBARA CARSS

ecently registered hourly Ontario energy prices (HOEP) of $0.00 per kilowatt-hour (kWh) don’t translate into windfall savings for commercial electricity customers. Rather, they signify that the global adjustment (GA) — the opaque envelope of costs for contracted supply, nuclear facility refurbishment programs and conservation and demand management initiatives that accounted for more than 85% of the commodity cost of electricity last year — is set to climb higher still. “The negative HOEP is interesting, but not especially relevant for commercial and institutional consumers,” advises Michael Lithgow, manager, energy and climate change, at Sunnybrook Health Sciences Centre. “It’s inversely correlated to the GA and, for every kWh, you’ve still got to pay the usual regulated [transmission and distribution] charges.” Despite a steep drop in province-wide energy consumption due to COVID-19 triggered business shutdowns, many building owners/managers expect a more modest flow-through dip in operating costs. The GA is central to that forecast, both due its quirky apportionment and its track record as the repository for added,

GTA & BEYOND ■ MARCH/APRIL 2020

often unspecified costs the Ontario government needs to cover. In the latter case, that could be the burden recently removed from residential, small business and farm customers when the government flattened time-of-use pricing and set prices at the off-peak rate of 10.1 cents/ kWh for at least 45 days. “It’s a great initiative, but one consequence could be that the GA goes up to cover the cost,” says Neal Bach, president of the energy analytics firm, Energy Profiles Limited. BLENDED RATES There may be another shock for some Class A customers who enjoy a locked-in factor for calculating their monthly GA allocation. The select group of large industrial and commercial consumers with average monthly peak demand of at least 1 megawatt (MW) and smaller manufacturers with average monthly peak demand of at least 500 kilowatts typically includes commercial buildings in the 350,000+-square-foot range. However, the formula for apportioning the GA, which will be in place until June 30, doesn’t align well with a sudden sharp decline in province-wide demand. Bach suggests the

larger group of Class B customers — generally encompassing most small and mid-sized commercial buildings — which pays the GA on a volumetric per kilowatt-hour basis, may now be in a preferred position compared to some Class A consumers. “Some Class A commercial customers are currently experiencing much higher blended rates because the GA costs are fixed until June 30. Consumption has dropped considerably at most properties — e.g. largely vacant office towers — but costs for borderline Class A customers are dropping to a much lesser degree,” he observes. “On that basis, for March to June 2020, Class B consumers with significantly reduced consumption will end up paying less than they would have if they opted in for Class A.” Under the rules of Ontario’s Industrial Conservation Initiative (ICI), Class A customers pay a share of the GA prorated to their energy demand during the five hours of system-wide highest peak demand in the period from May 1 to April 30. That’s then used to calculate their GA allocation in the ensuing 12 months from July 1 to June 30. Thus, current Class A customers pay GA that’s tied to five hours

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ENERGY MANAGEMENT

in the summer of 2018 when system-wide demand peaked at 23,240 MW to 21,885 MW. After Class A customers’ allocation is calculated each month, the remainder of GA costs is simply apportioned to Class B customers as a straightforward per-kWh charge. With Ontario’s daily peak demand hovering in the 14,000 MW range thus far in April, it’s expected that Class A customers will take on a larger than usual share of GA costs — a scenario that has always been possible, but never really anticipated. In 2018, for example, Class B paid about C 35% more of total GA costs than Class A. M “Theoretically, if the majority of Class A customers don’t have a good Y peak demand factor, Class A would actually pay more and Class B would CM get a break, but I don’t think that’s going to happen,” Scott Rouse, Managing Partner of the consulting firm, Energy@Work, mused in 2017. MY Now, he projects Class A customers with relatively stable energy CY consumption should continue to benefit from their status. “However, CMY those Class A customers that have been forced to shut down are going to K be in for a surprise,” he notes. NEW ICI CYCLE LOOMING This also occurs within the context of anticipated price adjustments for industrial customers, following last year’s consultation process and strong hints in the Ontario government’s fall 2019 economic and fiscal statement. “The government is proposing to take nearterm action to reduce the red tape burden in the electricity system by working with the Independent Electricity System Operator (IESO) to simplify and streamline industrial electricity billing and the Global Adjustment settlement process,” it stated. With the COVID-19 crisis delaying the release of the full Ontario 2020 budget and putting other provincial business on hold, that action is unlikely to occur before another one-year cycle of the ICI program begins on July 1. Class A customers have already carved out their share of the GA for the 2020-21 period since the five determining peak hours from May 1, 2019 to April 30, 2020 period all occurred last July. Now it’s just a matter of waiting for their local distribution companies (LDCs) to confirm their performance — known as the peak demand factor — based on their energy demand during those five hours. Conventionally, LDCs report to Class A customers before May 29 so that they, in turn, can decide whether to opt into the ICI program by a June 15 deadline. “If they’ve guessed the correct five hours and curbed their energy loads accordingly, they’ve reduced their global adjustment charge, which can be particularly beneficial for companies that have large pieces of energy-consuming equipment, like an arc furnace, for example,” says Andrew Pride, an energy management specialist who consults on energy efficiency and strategic conservation programs. “If all use drops 10 to 15% and a Class A customer hasn’t picked the correct peak, it would be on the hook for a larger bill than last year.” Even so, others speculate that could still be the best option. “With demand so low, the HOEP can be expected to drop even lower than it already is, which would put more upward pressure on the GA and cause costs to go up for Class B consumers as well,” Bach says. “If the Class A consumers have a fixed amount based on their peak demand factor and the residential rates are capped, who will pay the increased GA costs?” Rouse ponders. “Class B is left.” The Building Owners and Managers Association (BOMA) of Greater Toronto will once again host its annual workshop to weigh the possibilities, which, this year, will take form in a May 12 webinar. ■

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PLANNING & DEVELOPMENT

PLANNING ACT

TIMELINES ADJUSTED

Ontario addresses development approvals and appeals during state of emergency BY PATRICK HARRINGTON AND LEO F. LONGO

s part of its various legislative and regulatory responses to the current COVID-19 pandemic, the Province of Ontario passed Ontario Regulation 73/20 on March 20, 2020. The effect of O. Reg. 73/20 was to suspend limitation periods and procedural timelines under any statute, regulation, rule or by-law in effect in Ontario. The result was a pause on various forms of litigation and administrative proceedings to allow parties, adjudicators, local authorities and the Province to effectively respond to the changing needs of the crisis. In the land use planning context, O. Reg. 73/20 had the effect of suspending all timelines under the Planning Act, the Local Planning Appeal Tribunal Act, the Tribunal’s Rules of Practice and Procedure and a number of other related statutes, regulations, rules and by-laws. During a limited session of Parliament in early April, the Province moved to change the suspension of timelines in the land use planning context. This intended change was highlighted in an April 9, 2020 letter to the heads of Ontario’s various municipalities advising that the Province was preparing to take legislative steps to ensure that municipal councils would not need to worry about decision timelines under the Planning Act during the state of emergency. The letter indicated that municipalities would shortly have the comfort of being able

GTA & BEYOND ■ MARCH/APRIL 2020

to re-deploy resources as needed to combat the COVID-19 pandemic without the fear of impending development-related appeals. Equally, where municipalities did wish to proceed with decision-making under the Planning Act during the state of emergency, the Province would be providing a mechanism to allow such decisions to be made. The changes occurred through the enactment of Bill 189 (titled the Coronavirus (COVID-19) Support and Protection Act, 2020) and the passage of new Ontario Regulation 149/20. Through these enactments, the Province has (a) retroactively exempted the Planning Act from O. Reg. 73/20 and (b) created a new set of rules to govern the timelines for decision-making and appeals under the Planning Act. RETROACTIVE TO MARCH 17 The timeline changes are intended to apply for the duration of the current state of emergency. The changes are retroactive to the start of the emergency (March 17, 2020) and are relatively consistent amongst the various decisions capable of being made under the Planning Act, including official plans and official plan amendments, zoning by-laws and zoning bylaw amendments, site plan approvals, minor variances, plans of subdivision and consents. The new rules provided by O. Reg. 149/20 can be summarized as follows:

1. If a decision was made after February 26, 2020, and a notice was issued before April 15, 2020, the decision stands, but the notice is void. The notice must be re-issued “no later than 15 days after the COVID-19 emergency is terminated or disallowed.” 2. If a decision was made after March 2, 2020, but a notice had not been issued (or full notice circulation was not completed) before April 15, 2020, the decision stands, and the notice can lawfully be issued up to 15 days after the COVID-19 emergency is terminated or disallowed. Any notices given prior to April 15, 2020 are deemed to have not been given. 3. If a decision on a pending application was not made prior to April 15, 2020, a decision does not need to be rendered for the duration of the state of emergency. All timelines required by the Planning Act for the processing of an application and the rendering of a decision are suspended until the emergency is over, after which the relevant timeline will resume. The effect of this suspension is that there can be no appeals from non-decisions until after the emergency has ended. 4. Appeal timelines that would have ended between March 17, 2020 and April 15, 2020 are deemed to have not ended, and any appeals or motions filed within that

PLANNING & DEVELOPMENT

The rules for Committees of Adjustment differ slightly, but only for decisions made between February 26, 2020 and April 15, 2020. For these decisions, the secretarytreasurer must still give notice of the decision (regardless if notice has already been given), but the notice may be issued up to 10 days after the state of emergency is ended. As well, the appeal period under s. 45(12) is amended to allow appeals to be filed within 20 days after the new notice has been issued. COUNCILS EMPOWERED The result of the foregoing is that municipal councils and committees are empowered for the duration of the state of emergency to effectively control the decision-making and appeals process under the Planning Act: • After April 15, where a municipal authority wishes to render a decision and issue notice on a Planning Act matter during the state of emergency, it may do so. • Where a municipal authority is unable, or chooses not, to render a decision on a Planning Act matter during the state of emergency, a decision need not be rendered until after the state of emergency is over. No appeal rights from a non-decision will accrue. • If a decision is rendered during the state of emergency, it will be subject to the usual notice requirements of the Planning Act and will create rights of appeal. If no appeal is filed, the decision is final. If an appeal is filed, the municipal authority is not obligated to forward the appeal record to the Local Planning Appeal Tribunal until after the state of emergency has ended. ■ ___________________________________________ PATRICK HARRINGTON AND LEO F. LONGO ARE PARTNERS PRACTICING WITH THE MUNICIPAL AND LAND USE PLANNING GROUP AT AIRD & BERLIS LLP. FOR MORE INFORMATION, SEE THE WEBSITE AT WWW.AIRDBERLIS.COM.

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time period are deemed to have not been made or filed. 5. Where a Council or Committee does proceed to render a decision during the state of emergency, the usual Planning Act notice obligations and appeal timelines will apply to the decision. However, the timeline for the municipality to prepare a record and forward the appeal to the Local Planning Appeal Tribunal is suspended until the end of the state of emergency.

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ENERGY MANAGEMENT

SHIFTING ENERGY DEMAND Significant GHG emissions reductions projected BY BARBARA CARSS

he energy demand load has shifted in sync with the vast majority of Ontario’s workforce from commercial to home offices, prompting the Ontario government to suspend timeof-use (TOU) pricing during the current COVID-19 related upheaval. Residential, small business and farm customers will be charged the off-peak rate of 10.1 cents per kilowatt-hour (kWh) throughout the entire day until at least early May, substantially reducing the cost of electricity consumption during the 12 hours from 7 a.m. to 7 p.m. “Reduced peak from office buildings should compensate the increased load from the residential side,” notes Bala Gnanam, Vice President, energy, environment and advocacy, with the Building Owners and Managers Association (BOMA) of Greater Toronto. “Plus, other energy-based activities related to having kids and others home will increase the residential load. So it is only fair that the Ontario Energy Board suspends the TOU and extends the offpeak rate until this is over.” Alternatively, a significant reduction in greenhouse gas (GHG) emissions provides at least one bonus of these unprecedented times. Energy management specialists affirm that it won’t be a simple neutral shift from the commercial to the residential sector. Rather, commercial reductions should far outweigh the uptick residential buildings might cause. “There has been significant reduction in commercial natural gas use due to ventilation setbacks, but only marginally higher residential use due to slightly less setback than usual,” says Michael Lithgow, Manager, energy and climate change, at Sunnybrook Health Sciences Centre. “The transportation GHG reduction will be huge, particularly when you factor in air traffic.” However, Andrew Pride, an energy management specialist who also serves as Chair of the standing committee on the National Energy Codes, adds a couple of potential qualifications. “When it comes to heating, homes typically run more efficiently than commercial buildings, but the large volume of space being heated (at higher-than-usual daytime temperatures) in individual homes will be significantly more than a school or office building,” he says. “Transportation GHGs should be down a lot, although there will be an increase in home deliveries that may somewhat balance out those savings.” SAVING MEASURES Lithgow and Rob Detta Colli, Manager, energy and sustainability, with Crossbridge Condominium Services Ltd., offer some tips for building operators who are now contending with fulltime occupancy in residential buildings or emptier than usual commercial and public facilities. In the multi-residential sector, Detta Colli advises some adjustments to ventilation controls will likely be required. “I would consider resetting the variable speed drives on the make-up airs to the setting used during the typical occupied hours of the day,” he says. “Many buildings have programmed drives to

GTA & BEYOND ■ MARCH/APRIL 2020

take in less air during the middle of the night and in between meal times, and even that lesser amount is usually much more than is needed, but we’re in uncharted waters here.” Otherwise, he doesn’t expect much extra pressure on building systems. “Many buildings deliver cold water with variable speed drives so, if the demand goes up during the day, they’ll just run at a higher horsepower,” Detta Colli explains. There are still no firm numbers on residential water consumption itself, but he reports one industry consultant has told him to expect a “noticeable” increase. The hot water share of that extra usage will also have some flowthrough added GHG emissions. “We may need to wait for the natural gas consumption data to know the GHG impact,” Detta Colli says. Turning to the commercial and public facilities sectors, there is a plethora of recommended actions for buildings that are now emptier than is customary. “Put all ventilation and temperature set-points in unoccupied mode, and consider a deeper setback. Power down all unused equipment, computers, printers and lighting. Given this is a longer-than-typical shuttering, look at additional equipment such as network devices, AV equipment, hot water heating and vending machines,” Lithgow instructs. “Consider shutting off the incoming domestic water to some or all of the facility, though the central plant may need to be left on.” Many of these steps dovetail with the low-cost/no-cost measures that Toronto Hydro’s now cancelled OPSaver program was devised to entrench as common, reflexive operational procedures, notes Scott Rouse, Managing Partner with the consulting firm, Energy@Work. He suggests facilities management staff could use some of this unexpected downtime to assess and consider ways to improve energy performance. “With the facility empty, it could present an opportunity to identify the leaks and phantom power use, and squeeze the baseline down as much as possible,” Lithgow concurs. Nevertheless, even energy efficiency champions are clear that it’s a secondary priority right now. “The primary focus should be for all of us to comply with requests for social distancing and minimize human interaction until concerns surrounding COVID-19 are lifted,” Gnanam reiterates. ■

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