Interim Control By-laws in Ontario: What a Development Freeze Protects, Depending on Who You Are

The same by-law reads very differently to an owner-operator, a landlord, a developer and a buyer still in the conditional period. Here is where each one stands.

I’m Arthur Zhao, a real estate broker in Toronto. Here is the kind of call that puts this topic on the table. A plaza owner has finally lined up a tenant for the empty end unit. The tenant’s broker phones back a week later: the city has passed an interim control by-law covering the area, and the use the tenant wants is on its list. The owner never got a letter. Nobody at city hall asked for his opinion beforehand.

Both of those things can be perfectly normal. An interim control by-law is designed to be passed first and explained afterward, so the city can pause certain uses while it studies its planning rules. What makes it confusing is that its effect depends almost entirely on what you were already doing with the property on the day it passed.

So instead of walking through the by-law clause by clause, this piece sorts it by who you are: an owner running your own business on the site, a landlord with tenants trading there, an owner with permit or planning files in progress, and a buyer who has signed but not yet closed. For each, what the statute protects, what it leaves exposed, and the questions worth asking. This explains how the rules are written; it is not legal advice for your property.

The tool in brief: what it can do and how it ends

According to the Planning Act (s.38), an interim control by-law is about use: it prohibits land, buildings or structures in the defined area from being used for the purposes it names, or for anything other than the purposes it names. It does not by itself rezone your property. It holds things still while council finishes the review or study it directed.

• Length. Up to one year from passing (s.38(1)); council can amend it to extend, but the total cannot exceed two years from the original passing (s.38(2)).
• How it ends. If it expires and council has not passed a new zoning by-law under s.34 arising from the study, or if it is repealed or its area is reduced, the zoning that applied before it comes back into effect for the affected lands (s.38(6)). If council did pass a new s.34 by-law in time but that by-law is under appeal, the interim control by-law stays in effect until the Ontario Land Tribunal’s order (s.38(6.1)).
• No immediate repeat. Once it stops being in effect, council cannot pass another interim control by-law on any of the same lands for three years (s.38(7)).
• Notice comes after, not before. The clerk must give notice within 20 days of passing, in the manner and to the persons the regulations prescribe (s.38(3)).
• Appeal window. A person or public body that was given notice may appeal to the Tribunal within 50 days after the date the by-law was passed (s.38(4), in force June 8, 2023). By-laws passed before the Helping Homebuyers, Protecting Tenants Act, 2023 received Royal Assent continue under the section as it read before (s.38(4.1)).

Notice that the appeal clock runs from the date of passing, not from the day you happen to find out.

The two carve-outs everything below depends on

Section 38(8) applies s.34(9) of the Planning Act to interim control by-laws. That subsection says a by-law does not apply:

• (a) to an existing lawful use: land, a building or a structure that was lawfully used for a purpose on the day the by-law was passed can keep being used for that purpose, so long as it continues to be used for that purpose;
• (b) to a building with an already-issued permit: a building or structure for which a permit was issued under s.8(1) of the Building Code Act, 1992 before the day of passing can be erected and used for the purpose it was erected for, as long as it continues to be used for that purpose and the permit has not been revoked under s.8(10) of that Act.

Everything that follows comes back to these two sentences. Notice what they reward: something lawfully happening on the ground, or a permit already in hand, on a specific date. Intentions, drawings and pending files are not mentioned.

Four owners, one by-law

Each of the four sections below follows the same pattern: what the statute protects for you, what it leaves exposed, and the questions to bring to the municipality and your lawyer.

1. You own the site and run your own business on it

Protected. If your business was a lawful use of the property on the day of passing, s.34(9)(a) lets you keep using the property for that purpose while the by-law is in effect. The key word is lawfully: the carve-out covers a use that was lawful, not simply one that existed.

Exposed.

• Switching uses. The protection is tied to continuing that purpose. Moving into a use the by-law prohibits is not covered.
• Growing. The carve-out speaks about continuing a use. It says nothing about enlarging it.
• Building work that needs a permit. Under the Building Code Act s.8(2)(a), the chief building official does not issue a permit where the proposed work will contravene the Act, the building code or any other applicable law. For a conditional permit, s.8(3)(a) is explicit: compliance with by-laws passed under sections 34 and 38 of the Planning Act must already have been achieved.

Questions to ask.

• Does my current use fall within the purposes the by-law lists, or outside them?
• Was my current use lawful under the zoning that applied on the day of passing, and what records show that?
• If I need to renovate, how is the building department treating this by-law for permits on my site?

2. You are a landlord with tenants trading on the property

Protected. Section 34(9)(a) is written in terms of the land, building or structure and how it is used. If a tenant’s business was a lawful use on the day of passing, that use can carry on for as long as the space continues to be used for that purpose.

Exposed.

• Vacancies. The protection lasts “so long as it continues to be used for that purpose.” The statute does not say how long a unit can sit empty before that continuity is broken. If a protected tenant leaves, that is a question for your lawyer before you re-let, not after.
• A different use in the same unit. A new tenant with a use the by-law prohibits does not inherit the old tenant’s protection, because the carve-out is tied to continuing the same purpose.
• A new operator, same use. The text does not mention who operates the business. Whether a change of operator matters on your facts, especially with a gap in between, is not something s.34(9) answers directly.
• Tenant fit-outs. Your tenant’s permit applications face the same Building Code Act test described above.

Questions to ask.

• Which of my units hold uses the by-law lists, and what evidence do I have of each use on the day of passing?
• What do my leases say about permitted use, and what happens under them if a tenant cannot get a permit it needs?
• Before I sign a replacement tenant, does the proposed use survive the by-law on its own terms?

3. You have permit or planning applications in progress

Protected. Only one stage of your file gets an express carve-out: a building permit issued under Building Code Act s.8(1) before the day of passing. Under s.34(9)(b), the building can be erected and used for its intended purpose, provided it continues to be used for that purpose and the permit is not revoked under s.8(10).

Exposed.

• A permit that was applied for but not yet issued. Section 34(9)(b) refers to a permit that has been issued. An application in the queue on the day of passing is not described.
• Revocation risk on an issued permit. The protection depends on the permit not being revoked. Building Code Act s.8(10) lets the chief building official revoke a permit on listed grounds, including where construction has not been seriously commenced six months after issuance, or has been substantially suspended or discontinued for more than one year, in the official’s opinion.
• Rezoning and site plan files. Section 38 itself says nothing about planning applications already in process. The end point it does describe is either a new s.34 zoning by-law that comes out of the study, or a return to the prior zoning (s.38(6)).

Appeal. A person or public body that was given notice may appeal within 50 days after passing (s.38(4)). Where notice is given other than by newspaper publication, O. Reg. 545/06 s.9(8) requires it to state that only individuals, corporations and public bodies may appeal, and that an unincorporated association or group may not, although a member may file in their own name on the group’s behalf.

Questions to ask.

• Exactly what was issued, and when, relative to the date the by-law was passed?
• Is my construction schedule exposed to any of the s.8(10) revocation grounds while the by-law is in effect?
• How is the city handling applications like mine during the study, and what is the study looking at in my area?
• Do I want to appeal, and is the 50-day window from passing still open?

4. You have signed to buy, and you are still in the conditional period

Protected. If the seller’s current use was lawful on the day of passing, s.34(9)(a) is written around the property and its use, not around the owner’s name. Similarly, a permit issued before passing is attached to a building under s.34(9)(b). Whether those protections carry through your purchase on your specific facts, particularly if the use is interrupted around closing, is a question for your lawyer.

Exposed.

• Your plan for the property. If you are buying to introduce a use the by-law prohibits, or to redevelop, nothing in s.34(9) covers you. Those plans are exactly what the by-law can pause.
• Hearing about it. According to O. Reg. 545/06 s.9, the municipality gives notice in one of three ways: in a newspaper with sufficiently general local circulation, on its website if no such newspaper exists, or by personal service or ordinary mail to every owner within 120 metres of the subject land. Mailed notice goes to the owner on the last revised assessment roll, which is the seller, not you. You may never see a notice addressed to you.
• Timing. The 50-day appeal window under s.38(4) runs from the date of passing. A buyer who learns of the by-law weeks later may find much of it gone.

Questions to ask.

• Is any interim control by-law in effect on this property, and on what date was it passed?
• Has council directed a land use review or study for this area? (Under s.38(1), that direction must come before any interim control by-law.)
• Did the seller receive any notice, and what was the property actually being used for on the day of passing?
• Do my conditions, and the time left on them, give me room to get these answers?

Who to ask, and what to ask them

Organised by the person you need to reach, since most of the answers sit in someone else’s files.