My Rosedale Neighbourhood v. Dale Inc., 2019 ONSC 6631

My Rosedale Neighbourhood v. Dale Inc., 2019 ONSC 6631

CITATION: My Rosedale Neighbourhood v. Dale Inc., 2019 ONSC 6631

DIVISIONAL COURT FILE NO.: 412/19

DATE: 20191118

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

MY ROSEDALE NEIGHBOURHOOD and SOUTH ROSEDALE RESIDENTS’ ASSOCIATION

Applicants

– and –

DALE INC. and DALE ii INC., CITY OF TORONTO, DAVID MOORE and TORONTO AND REGION CONSERVATION AUTHORITY

Respondents

Patrick G. Duffy and Kelly Oksenberg, for the applicants

Timothy J. Hill, N. Jane Pepino, and Meaghan Barrett, for Dale Inc. and Dale II Inc.

Christopher J. Henderson and Alexander J. Suriano, for the City of Toronto

HEARD at Toronto: November 13, 2019

F.L. Myers J.

REASONS FOR DECISION

Background

1The applicant associations seek leave to appeal to the Divisional Court from the decision of the Local Planning Appeal Tribunal dated July 4, 2019. The tribunal found that a revised development proposal made by the respondents Dale Inc. and Dale II Inc. supported by the City of Toronto satisfied the heritage conservation policies established under the Planning Act, RSO 1990, c P.13.

2Technically, the tribunal allowed the developers’ appeal from the failure of the City to pass the zoning by-laws and official plan amendment sought by the developers to implement their project.

3Under s.37(1) of the Local Planning Appeal Tribunal Act, 2017, SO 2017, c 23, Sch 1, an appeal from the tribunal’s decision lies to this court only with leave which may be granted on a question of law alone. That is, the Legislature has assigned to the tribunal alone the task of balancing the factual and policy considerations underlying planning decisions. The task of this court is limited to ensuring that when the tribunal exercises its exclusive decision-making authority, it applies the proper legal principles.

4The parties agree that to obtain leave to appeal, the applicants must establish that: (a) they are raising one or more questions of law; (b) the questions are of sufficient general or public importance to merit the attention of the Divisional Court; and (c) there is good reason to doubt the correctness of the tribunal on the question(s) of law raised. See: Hobo Entrepreneurs Inc. v Sunnidale Estates Ltd., 2013 ONSC 715.

5For the reasons that follow, the application for leave to appeal is dismissed. In my view, despite interesting and very able efforts by counsel for the applicants to identify errors of law in the tribunal’s decision in this case, properly understood in the context of the case, the issues that they raise are actually factual and policy issues for which no leave to appeal is available.¹

The Decision of the Tribunal

6The developers propose to demolish three contiguous houses and, in their place, build a low-rise apartment building on Dale Avenue in Toronto. The site is within a Heritage Conservation District as defined in the Ontario Heritage Act, RSO 1990, c O.18. As a result, the proposed demolition required approval of Toronto City Council under that statute.

7After much negotiation, changes to the proposed development project to enhance its heritage attributes or heritage value, and the attachment of several conditions, the City approved the demolition of the three houses under the Ontario Heritage Act. The City did not however enact on a timely basis the zoning by-laws and official plan changes needed by the developers to proceed with the project. The developers therefore appealed to the tribunal under the provisions of the Planning Act.

8It is common ground that the issues before the tribunal were whether the developers’ revised proposal met the heritage concerns under the Planning Act. Subsection 3(5) of the Planning Act requires that the zoning by-laws sought and the tribunal’s decision must be consistent with existing policy statements issued under the statute and must conform with existing provincial plans. In addition, under the Planning Act, zoning by-laws must conform to the municipality’s official plan. Therefore, the parties agree that the task of the tribunal was to consider whether the project, the proposed by-laws, and the proposed official plan amendment conformed with the heritage conservation policies set out in the Provincial Policy Statement, 2014, the Growth Plan for the Greater Golden Horseshoe, 2017, and the Standards and Guidelines for Historic Places incorporated into the City of Toronto’s Official Plan.

9The tribunal set out the relevant policies and plans and expressly found them satisfied in its decision. The applicants submit that along the way the tribunal made the following four errors of law:

a. It abdicated its statutory function under the Planning Act by deferring to the decision of the City to approve the project under the Ontario Heritage Act;

b. It treated the heritage policies under the Planning Act as subservient to the Ontario Heritage Act;

c. It treated demolition and land assembly as an acceptable approach to conservation; and

d. It adopted an unreasonable interpretation of the South Rosedale Heritage Conservation District Study of 2002 that conflicts with its own words and the provisions of the Ontario Heritage Act.

10The first two alleged errors say the same thing. The applicants argue that the tribunal failed to give effect to the Planning Act by deferring to or subordinating the Planning Act approval process to the Ontario Heritage Act approval given by the City. If the tribunal purported to apply the wrong test under the Planning Act or failed to apply the test under the Planning Act at all, that would state a question of law in my view.

11Each of issues (c) and (d) seems to state a question of mixed fact and law on its face. Issue (c) questions whether the proposed demolition can amount to an acceptable approach to conservation under the various heritage policy and planning documents. The applicants were at pains to say that they were not arguing that demolition can never occur. They do not seek a legal interpretation of whether the wording of the various documents can ever include a demolition. Rather, what they seek is more nuanced. They ask for a review of the demolitions proposed in this case (referencing one of the three houses in particular) and argue that these demolitions do not give rise to an appropriate conservation approach under the planning documents as properly interpreted. Applying the law as interpreted to the facts as found is quintessentially a mixed question of fact and law.

12Issue (d) likewise resolves to a question of whether the fact that a prominent architect was identified as having designed one of the houses ought to have led the tribunal to recognize that the house had a higher conservation rating or grade than was assigned in the 2002 study of the district. There could be an issue of law as to whether the tribunal ought to have recognized its ability to assign higher ratings or grades to properties than was set out in the 2002 study. However, as will be discussed below, the tribunal looked at the issue and simply disagreed with the applicants’ position on the facts. The issue of law that they posit therefore did not arise.

Identifying the heritage value of a property for conservation purposes is the first step.

13Under s.2.6.1 of the Provincial Policy Statement, significant heritage resources and landscapes within a Heritage Conservation District are to be conserved. Similarly, under s.4.2.7 of the Growth Plan, cultural resources within a Heritage Conservations District are to be conserved. Conservation in the latter plan includes retaining the cultural heritage value of an identified heritage resource. The City’s Official Plan also provides for conservation of heritage properties within a Heritage Conservation District. Under the relevant Standards and Guidelines, there is to be a process in which the heritage value of a property is understood, respected, and treated with the least physical intervention.

14In 2002, the South Rosedale Heritage Conservation District Study was published. It provided assessments of the heritage values of a great many residences in the neighbourhood. It ranked the structures “A”, “B”, and “C” in accordance with the prominence of the architect and whether the structures were important contributions by the architect. The properties in issue were ranked as “C” properties, meaning that they were not designed by a prominent architect. The study noted that properties ranked “A” and “B” should not be demolished if at all possible. Properties graded “C” were subject to demolition under the study in appropriate conditions.

15Like the City’s Standards and Guidelines, the study noted that the process of understanding the cultural value of properties will evolve. It is now common ground that one of the three houses in issue was designed by a prominent architect. The applicants therefore argue that it should be recognized as an “A” or “B” property under the study and should not be demolished.

Did the Tribunal abdicate its role under the Planning Act by deferring to the City’s decision under the Ontario Heritage Act?

16The applicants concede that the tribunal set out the correct test for itself at para 141 of its reasons in noting that under the two provincial policies and the City’s Standards and Guidelines, it was up to the tribunal to determine the nature of the heritage value of the properties and then to assess the conservation steps required.

17In discussing the assessment of the heritage value of the properties, the tribunal wrote:

148…The mandate of the decision maker is then to consider all of the facts which are presented and determine what value should be assigned to them in terms of the importance to the community of any one or more of those matters that then warrants conservation going forward. As noted above, this is the task of the municipal council under the OHA.

149Those who prepare heritage assessments and heritage impact assessments are collectors of facts and profferors of opinion. They are not divinity. Their work is intended to assist the decision maker, being a body elected by the community and accountable to that community, a body treated by the legislation as the one to exercise the judgment of what attributes may represent heritage value requiring conservation.

151As such, the Tribunal accepts that City Council, as the authorized decision maker under the OHA, considered the evidence put before it and, despite mixed opinions placed before it, made the heritage value judgments which they are authorized to make. These judgments led them to authorize the demolition of the existing buildings on the Property and to authorize the proposed apartment building as fulfilling the objectives of the HCD Study and the applicable planning instruments.

152The OHA imposes no obligation on a municipal council to retain any specific built or cultural heritage resource. There is always a necessary judgment as to the heritage value of any given structure or cultural landscape as that relates to the community that the council governs.

153The South Rosedale HCD Study explicitly anticipates demolition of existing structures classified as C-rated structures and their replacement by new development.

154The Tribunal reads the record here as indicating that City Council at its meeting on December 13, 2018 accepted the Revised Proposal (as it was labelled in the City Planning reports and Council resolution) as the method by which the heritage attributes of the Property would be conserved for the purposes of the South Rosedale HCD and to implement that conservation, demolition permits with respect to the existing structures, once the prescribed terms and conditions imposed by Council were satisfied, may issue. The Tribunal approaches this action as fully within Council’s jurisdiction and in conformity with the applicable Provincial and City Official Plan policy concerning heritage conservation.

18Relying on these paragraphs, the applicants argue that the tribunal drew its assessment of the heritage value of the properties and the appropriateness of the conservation measures proposed solely from the City’s approval of the demolition under the Ontario Heritage Act. As noted above, if this were the case, I would likely find that the appeal raises a question of law.

19However, the applicants have focused on a very few paragraphs from among a much larger analysis. Looking at the full decision, it is apparent that the tribunal engaged in a much broader inquiry.

20I note that in identifying the culturally significant elements of a property within a Heritage Conservation District, the Provincial Policy Statement requires the exercise of judgment. In Re PROUD Port Dalhousie, 2009 CarswellOnt 1096 at para. 93, the OMB discussed the task as follows:

As with a heritage structure, not every element of a heritage district is of equal significance. The significant attributes of the heritage district should be identified in the district plan or in the case at hand, the District Guidelines. The PPS in defining “significant” necessarily calls for judgment to be used in determining significance. In calling for the conservation of “significant built heritage resources” and “significant cultural heritage landscapes”, the PPS implicitly acknowledges that there may be built heritage resources and cultural heritage landscapes which are not significant and which do not warrant conservation. Such an interpretation allows for the balancing of a variety of provincial interests as mandated by the PPS.

21In trying to determine the heritage value of the three properties within the context of this Heritage Conservation District, the tribunal adopted the approach submitted to it by the applicants as follows:

131In their final written submissions, counsel for the Associations, at para. 116, say that the appeal is not about choosing between the ratings in the HCD Study and a Regulation assessment but rather that it is about using the tools available (including the HCD Study) to properly understand the heritage value of the existing resources of the Property and to ensure that that value is appropriately conserved. The Tribunal agrees with that assessment.

22The applicants agreed below that the identification of the heritage value for conservation was not simply a matter of looking at the ratings in the 2002 study but rather looked at all available evidence in 2019. The approval of demolition by City Council was one such factor.

23On the issue of assessing the heritage ratings or grades assigned by the study, in their recitation of the tribunal’s purported abdication in favour of the City, the applicants downplayed para. 150 of the decision in which the tribunal wrote:

Mr. Goldsmith [the respondents’ expert], a qualified heritage architect, considered the record and held a different opinion than Dr. Letourneau [the applicants’ expert]. Even after having the benefit of Dr. Letourneau’s work, Mr. Goldsmith did not alter his view that the grading of the buildings on the Property as set out in the HCD Study did not require revisitation. The HCD Study, as accepted operating guideline, makes full allowance for demolition of structures in the interest of advancing the general and overall objectives of the HCD Study in the form of new buildings which will align with the heritage character of the district.

24That is, there was a debate in the evidence as to whether the buildings, including the one that was determined to have been designed by a prominent architect, had heritage value that deserved or required conservation, or whether even with demolition, the new buildings could conform to the heritage character of the Heritage Conservation District as discussed in Proud Port Dalhousie.

25The tribunal accepted the evidence of the respondents’ expert to the effect that the heritage value of the properties was not in the bungalows built on them after World War II, but, rather, the land itself, in its particular setting, and with significant landscape architecture designed by the father of Canadian landscape architecture. The tribunal made very clear findings on the heritage value of the properties as follows:

158This bit of guidance, in fact, reflects in a much more elegant and literary way what the Tribunal has come to appreciate about the Property and attempted to express more prosaically above.

159It is a tale of transformation anchored to the primary geographic beauty. The Revised Proposal is the swan informed by the heritage attributes of the Property. On the Tribunal’s perception of the evidence, the existing structures have characteristics of middling interest for which there are limited grounds of value and minimal motivation to preserve.

160The conservation foreseen here by City Council is facilitated by a character of transformation which seizes upon the base elements of the property itself. The result will once again be a substantial building on a bold promontory overlooking the valley consistent with the character of presence of handsome structures in South Rosedale. [Emphasis added.]

26In the ensuing ten pages, the tribunal then applied its findings concerning the heritage value of the site to each of the relevant statutory instruments. It discussed the improvements to the initial plan that were required by City heritage staff and the conditions attached in the City approval – all of which aim at better conserving the identified heritage values of the properties in the context of the Heritage Conservation District. In paras. 200 and 201, the tribunal makes findings that the proposed zoning by-law and Official Plan amendment meet the policies of the Provincial Policy Statement, the Growth Plan, and the City’s Official Plan.

27It is apparent that the first two issues of law raised by the applicants then do not arise on the facts of this case. The tribunal certainly considered City Council’s approval of the demolition among the facts that it considered. But it plainly went on to set out the correct tests and to explicitly make the required legal findings. There is no point hearing an appeal on the issue of whether the tribunal was entitled to abdicate its role to that of the City or to subordinate the Planning Act tests to the Ontario Heritage Act when on the face of the decision it did neither of those things.

Do the demolitions in this case amount to a proper approach to conservation?

28The applicants argue that tribunal erred in law by finding that demolition and land assembly to create a large parcel to reflect the site’s historic, undivided nature cannot amount to “conservation” under the various statutory documents. They argue that the tribunal’s use of the Ugly Duckling analogy to find that the heritage value of the properties, in the context of the district, is essentially the features of land itself and the landscaping rather than the homes, is not conservation at all, was not supported by the evidence, and was simply made up.

29There could be a question of law as to whether demolition can ever be conservation under the relevant statutory instruments. But, as noted above, the applicants accept that some demolition is allowable in a Heritage Conservation District. What they are challenging is the decision to find that the land itself provides the heritage value rather than the houses on the land. That is a finding of fact or one of mixed fact and law. It still perhaps could amount to an error of law if the finding was made up and did not reflect the evidence as adduced. However, Mr. Hill carefully led me through the evidence of Mr. Goldsmith, the respondents’ expert, that was accepted by the tribunal to support the findings that it made. The tribunal’s findings were not made up but were firmly anchored in the evidence. As such, the applicants’ concerns are really with the tribunal’s acceptance of the evidence of one expert over the other. This does not amount to an error of law.

Was the tribunal’s decision unreasonable because it failed to recognize that one of the houses ought to have had a higher rating than was assign in the 2002 study?

30The study is not one of the documents incorporated into the Planning Act that had to be met as a matter of law under the statute. It was recognized as an important factor by the tribunal and the applicants do not contest that finding. They argue simply, that as a matter of law, the study recognized that its ratings would evolve over time and once the prominent architect for one of the houses was discovered, the tribunal erred by allowing the demolition of that house.

31The difficulty of that argument though is seen in para. 150 of the decision discussed above. The tribunal recited the opinion of the respondents’ expert that even with new information about the architect, the grade or rating of the one house did not require change. The tribunal knew the information and still held that the houses themselves “had characteristics of middling interest”. Once again, it is not the legal test that the applicants truly contest. It is the findings of fact or the legal standards as applied to the facts as found that they are challenging. As such, they do not raise an issue of law on this head either.

Outcome

32In planning cases such as this one, the role of the court is to ensure that the law is understood and applied appropriately by those charged with the tasks of making the planning decisions. It is well understood that planning matters involve policy decisions as much or more than legal ones. It is not the role of the court to balance competing policies, weigh subjective aesthetics, or to make the political compromises that underlie planning decisions.

33In this case, I am not making any determination about the heritage value of the proposed development. Rather, I am considering the court’s role as overseer of the legality of the process and make the sole finding that the applicants have not raised any issues of law that arise for decision in this case for which leave to appeal to the Divisional Court may be granted.

34The application for leave to appeal is therefore dismissed.

35The respondents who appeared (other than the City) seek costs of $30,000 on a partial indemnity basis. The applicants argue that $15,000 is a more appropriate figure. In my view, this was a complicated matter with three distinct arguments that required significant time by counsel. A reasonable costs outcome considering the factors in Rule 57.01 and the of issue of access to justice is for the applicants to pay to the respondents Dale Inc. and Dale II Inc. jointly and severally costs in the aggregate sum of $22,500 all-inclusive.

Footnotes

1. 1Moreover, in light of the deferential reasonableness standard that would apply on any appeal, I have a question as to the likelihood of success of an appeal even if a question of law was discerned. The tribunal’s reasons are very thorough and complete. The path to an intelligible and justifiable decision seems readily discernable. However, as I do not think that the issues raised amount to appealable issues of law, I do not need to assess the general importance or likelihood of success under the three-part test set out above.