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Municipal - Heritage. Toronto (City of) v. 445 Adelaide Street West Inc.
In Toronto (City of) v. 445 Adelaide Street West Inc. (Div Ct, 2022) the Divisional Court reviewed the basics of the little-litigated Ontario Heritage Act:1. Cultural Heritage Value and the Ontario Heritage Act
[14] The overarching purpose of the Ontario Heritage Act is to provide for the conservation, protection and preservation of the heritage of Ontario, and to this end, the Act confers broad powers upon municipalities to designate properties as being of cultural heritage value or interest, thereby interfering with private property rights.[5]
[15] The scheme of the Ontario Heritage Act has two discrete branches (Parts IV and V of the Act) with respect to land use planning and heritage conservation. Properties can be recognized for their individual cultural heritage value (Part IV of the Act), and, or they can be recognized as a part of a collective “Heritage Conservation District” (Part V of the Act). Part IV of the Ontario Heritage Act sets out the process for individually “listing” and “designating” a property. Part V of the Act sets out the process for establishing a Heritage Conservation District.
[16] For the purposes of this appeal, the most pertinent matter is Part IV of the Ontario Heritage Act. Pursuant to Part IV, s. 29 of the Ontario Heritage Act, a municipality may by by-law designate a property to be of cultural heritage if the property meets the prescribed criteria for determining whether a property has cultural heritage value. Ont. Reg. 9/06 prescribes the criteria for determining whether a property has cultural heritage value or interest. In the immediate case, the City enacted by-laws designating the John P. Jackson House and the Eliza Lennox Houses as heritage properties.
[17] There is a prescribed process for the enactment of the by-law, and if the by-law is enacted then a person who objected to the by-law may appeal to LPAT. On the appeal, pursuant to s.29(15) of the Ontario Heritage Act, after holding a hearing, the LPAT shall: (a) dismiss the appeal; (b) allow the appeal and repeal the by-law in whole or in part; or (c) allow the appeal and amend the by-law in whole or in part.
[18] Pursuant to s. 27 of the Ontario Heritage Act, the clerk of the municipality shall keep a register that includes, among other things, properties that the municipality has designated by by-law.
[19] The Ontario Heritage Act provides that no owner of property designated under s. 29 of the Act shall remove or demolish a building or structure on the property unless the owner receives consent from municipality.
[20] If the municipality does not consent to an owner’s application to demolish the structures on its property, the owner may appeal to the LPAT.
[21] On the appeal, pursuant to s. 34.1 (5) of the Ontario Heritage Act, after holding a hearing, the LPAT may dismiss the appeal or order that the municipality consent to the demolition or removal without terms and conditions or with such terms and conditions as the LPAT may specify in the order.
[22] If the LPAT approves the demolition application, then pursuant to s. 34.3 (1) of the Ontario Heritage Act, the municipality must repeal the by-law under s. 29 of the Act designating the property as being of cultural heritage value or interest.
[23] As explained by the Court of Appeal in Clublink Corporation ULC v. Oakville (Town),[6] (where the issue was whether a golf course was a “structure” that could be designated as being of cultural heritage value,) the Ontario Heritage Act was first enacted as the Ontario Heritage Act, 1974,[7] and the statute was substantially amended in 2005 through the Ontario Heritage Amendment Act, 2005.[8] As explained by Justice Harvison Young, under the original scheme of the Act, the municipality could designate a property as being of cultural heritage value with the effect of delaying any demolition of the property to afford the municipality the opportunity to expropriate the property.
[24] As explained by Justice Harvison Young, in Clublink Corporation ULC v. Oakville (Town), under the current scheme of the Ontario Heritage Act, which was introduced in 2005, the municipality can prohibit demolition by designating the property, but the landowner is afforded a right to apply for the municipality’s consent to demolition, and if the municipality’s refuses consent, then the landowner can appeal to the LPAT (formerly the Ontario Municipal Board). If the appeal of the municipality’s refusal to consent is successful, then the designation by-law is repealed. As Justice Harvison-Young explained at paragraphs 57 and 58 of her judgment in the Clublink case:57. In 2005, significant amendments were introduced to the OHA through the Ontario Heritage Amendment Act, 2005, S.O. 2005, c. 6 (the "2005 Amendments"). In particular, the 2005 Amendments provided the municipality the power to refuse outright -- and not merely delay -- an application to demolish a building or structure on a designated property under s. 34.
58. To counterbalance this expanded municipal power, the 2005 Amendments provided the owner with a binding right of appeal to the Ontario Municipal Board (now the LPAT). The introduction of these expanded procedural protections indicates that, consistent with the 1974 Legislation, the legislature viewed the power of a municipality to refuse outright an application for demolition or removal of a structure as a more profound interference with private property rights. As with previous iterations of the OHA, once the municipality had approved the owner's application -- or the OMB had directed the municipality to approve the application -- the municipality was obligated to repeal the by-law designating the property as being of cultural or historic value or interest. . Toronto (City of) v. 445 Adelaide Street West Inc.
In Toronto (City of) v. 445 Adelaide Street West Inc. (Div Ct, 2022) the Divisional Court sets out some basics of the Local Planning Appeal Tribunal (LPAT), and how it may involve itself with issues of cultural heritage:[31] For the analysis later in these Reasons for Decision, it shall be helpful to keep in mind that from the perspective of land use planning practice and procedure, the LPAT has jurisdiction with respect to a variety of land planning approvals, including matters of official plans, zoning, minor variances, site plan approvals, and subdivision control.
[32] It shall also be helpful to keep in mind for the analysis later in these Reasons for Decision that from the perspective of land use planning practice and procedure, the determination of cultural heritage value might come before the LPAT in three ways, the first of which does not engage the Ontario Heritage Act.
[33] First, the matter of cultural heritage value might come before the LPAT where there has been no designation of the property under the Ontario Heritage Act and the landowner seeks an approval under the Planning Act.
[34] Second, the matter of cultural heritage value might come before the LPAT where there has been a designation of the property under the Ontario Heritage Act and the landowner in addition to seeking some Planning Act approval is appealing: (a) the municipality’s designation of the property; or (b) the municipality’s refusal to allow demolition of the designated property under the Ontario Heritage Act.
[35] Third, the matter of cultural heritage value might come before the LPAT where the landowner is seeking some Planning Act approval and there has been a designation of the property under the Ontario Heritage Act, but the landowner has not appealed: (a) the designation of the property; or (b) the municipality’s refusal to allow demolition of the designated property.
[36] As the description below of the facts will reveal, the case at bar is about the third way that the matter of cultural heritage value may come before the LPAT. As the analysis below of the law will reveal, the third way the matter of cultural heritage value might come before the LPAT is rife with problems.
[37] In the immediate case, 445-Adelaide’s property had been designated under the Ontario Heritage Act, but it took no steps to exercise its rights under the Ontario Heritage Act and sought to have the cultural heritage value of its property dealt with exclusively under the Planning Act, notwithstanding there had been a designation of the property under the Ontario Heritage Act.
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