Clark v. Oshawa (City), 2022 CanLII 21217

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 14, 2022

CASE NO(S).: OLT-21-001150

PROCEEDING COMMENCED UNDER subsection 29(5) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended

Objector: J.A. (Jane Andrea) Clark

Owner: Scouts Canada

Subject: Objection to the Notice of Intention to Designate

Property Address: 1711 Simcoe Street North (“Camp Samac”)

Legal Description: PT N1/2 LT 9 CON 4 EAST WHITBY AS IN CO132693; PT LT 10 CON 4 EAST WHITBY; PT LT 11 CON 4 EAST WHITBY; PT ROAD ALLOWANCE BTN LTS 10 AND 11 CON 4 EAST WHITBY CLOSED BY BYLAW 391 AS IN CO123078, CO114510 EXCEPT PART 2 PLAN 40R29010, PTS 1, 2, 3, 40R16107, PTS 1, 2, 40R16108; S/T D418099, EW16403, EW16438, EW16460, EW22701; CITY OF OSHAWA

Municipality: City of Oshawa

OLT Lead Case No.: OLT-21-001150

OLT Case No.: OLT-21-001150

OLT Case Name: Clark v. Oshawa (City)

Heard: In writing

APPEARANCES:

Parties	Counsel*/Representative
J. A. (Jane Andrea) Clark	Self-represented
Scouts Canada	K. McKenna
City of Oshawa	Adam J. Kosnick*

DECISION DELIVERED BY DANIEL NELSON AND ORDER OF THE TRIBUNAL

BACKGROUND

1Scouts Canada is the owner of 1711 Simcoe Street North, in the City of Oshawa ("City"), Ontario (the "property"). The property is operated as a campground for members of Scouts Canada and is known as Camp Samac in honor of the camp’s original benefactor, Samuel McLaughlin.

2On May 13, 2021, the City gave Notice of Intention to Designate (“NOID”) the property as a property of cultural heritage value or interest (“CHVI”) under s. 29 of the Ontario Heritage Act, R.S.O. 1990 c. O.18 as it read at that time (“OHA”). Scouts Canada consented to the designation. On June 8, 2021, Jane Andrea Clark (“Objector”) filed a notice of objection pursuant to s. 29(5) of the OHA. As a result, the matter was referred to the Ontario Land Tribunal (“Tribunal”).

3A case management conference (“CMC”) was held in respect to this matter on November 24, 2021. The Architectural Conservancy of Ontario (“ACO”) was added as a participant in the proceedings at the CMC but is not a party in the proceedings.

4Concerns were raised at the CMC about the jurisdiction of the Tribunal to hear this matter based on the Objector’s objection. The Tribunal issued a procedural order on December 17, 2021, directing that this question be resolved by way of a motion in writing.¹

[5] The parties to the motion are:

• City of Oshawa;
• Scouts Canada; and,
• Jane Andrea Clark.

6The ACO is a participant in the motion. Scouts Canada declined to participate in the motion and did not make submissions.

7The parties and participant were directed to make written submissions on whether or not the Tribunal, acting under the former OHA (as defined below) has jurisdiction to hear the matter given the nature of the objection of the Objector. No other issue would be considered in the motion.

8It is important to note that this matter is governed by the OHA as it read on June 30, 2021 (“former OHA”), pursuant to Ontario Regulation No. 385/21 (“O.Reg. 385/21”)The Tribunal, therefore, only has the jurisdiction of the former Conservation Review Board (“CRB”), which was amalgamated into the Ontario Land Tribunal by operation of the Ontario Land Tribunal Act.² For clarity, references to the Tribunal throughout this order mean the Tribunal in its capacity as the former CRB and with only the jurisdiction of the CRB as it was then constituted under the former OHA.

SUBMISSIONS OF THE CITY

9The City’s position can be summarised concisely: the Tribunal, in this matter, only has jurisdiction to determine whether or not a property should be designated under the former OHA. Since the Objector agrees that the property should be designated, and since the Tribunal does not have jurisdiction to consider other issues, the matter should be dismissed.

10The City also rejects the Objector’s position that s. 34 of the former OHA gives jurisdiction to the Tribunal. Section 34 requires that no building be demolished or removed from a property designated under the former OHA without the consent of the subject municipality. Since the property is not yet designated, the City argues that the Tribunal, in this matter, has no jurisdiction.

11The City submits that, because of the lack of jurisdiction, and pursuant to s. 4.6 of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22 (“SPPA”) and by operation of Rule 15.4 of the Rules of Practice and Procedure of the Tribunal (“Rules”), the matter should be dismissed.

SUBMISSIONS OF THE OBJECTOR

12The Objector begins by conceding that the Tribunal, in this matter, has the power to dismiss these matters pursuant to the SPPA and the Rules.

Section 34

13The Objector submits that the Tribunal, in this matter, has jurisdiction under s. 34 of the OHA since the statute provides interim protection of the property under that section by operation of s. 30(2) while a decision regarding designation is made. The Objector also cites page 13 of the 2021 edition of the Draft Ontario Heritage Toolkit, which discusses this interim protection of properties.

Lack of Jurisdiction

14The Objector argues that the Tribunal, post-amalgamation, does not, in this matter, have only the jurisdiction of the CRB. It has, instead, all of the jurisdiction of the Tribunal post-amalgamation. At this stage, it may be appropriate to quote the Objector verbatim:

The duties and responsibilities of the Conservation Review Board have been transferred wholesale to the amalgamated Ontario Land Tribunal, with only reporting and timing changes. Despite the name change, the role of the OLT is still to review heritage-related matters, and to provide orders and recommendations as required, based on that review.

15She quotes the Frequently Asked Questions (“FAQ”) section of the OLT’s website in support of this argument.

Recommendations

16The Objector submits that the CRB had a habit of making recommendations beyond that of determination of CHVI. She posits the following:

I believe the existing legislation and precedent shows that OLT has inherent jurisdiction to consider and make recommendations about ancillary matters in its designation-review role, such as inappropriate or invalid language in the NOID that could have the effect of nullifying the protections and intent of the Act concerning the heritage attributes of the property and the structures on it, as in this case.

17No caselaw was advanced in support of this position regarding inherent jurisdiction.

Problems with the NOID

18Finally, the Objector argues that the NOID, as written, is:

incomplete, inconsistent, and incompliant with the current requirements of the OHA for the mandatory content of designation bylaws and contains inappropriate content that purports to substitute a process (or non-process) for dealing with alterations or demolitions that is contradictory to the process set out in the Act itself.

19She does not elaborate on these issues with the NOID in her motion materials but did enumerate them in her original letter of objection dated June 8, 2021, a summary of which is as follows:

Heritage Attributes

• There is an extensive list of heritage attributes in the research report prepared by the City but only one, the camp gate, was included.
• No attempt was made to link the attributes to the CHVI of the property as required by the OHA.

Statement of Cultural Heritage Value or Interest

• Attributes contain associative and contextual values that belong in the Statement and not in the list of Heritage Attributes

Issues with NOID

• Instead of providing a statement explaining the CHVI of the property, the NOID refers to “Reasons for the Proposed Designation”. The legislation does not provide for the use of alternative language.
• The NOID contained language that permits Scouts Canada to alter, repair, maintain or demolish existing structures and construct new buildings or structures without the approval of City Council. There is no provision in the OHA to permit this and City Council has abdicated its responsibility under the OHA as a result.
• Buildings and other property features do not appear as attributes despite the important history of them.

SUBMISSIONS OF THE ACO

20The ACO begins by submitting that the Tribunal, in this matter, has jurisdiction to make recommendations not only about the CHVI in the property but to make recommendations beyond that of designation. It suggests that, going as far back as 2006, the CRB has done so previously.

21The ACO makes similar submissions with respect s. 34 of the OHA and argues that since issuing the NOID, interim demolition protection applies, then the Tribunal has jurisdiction since it is “functionally designated”.

22Finally, the ACO argues that the Tribunal, in this matter, has “inherent jurisdiction to consider and make recommendations about ancillary matters…”. It should be noted that no case law was advanced to support this argument of inherent jurisdiction.

ANALYSIS AND FINDINGS

Section 34 Arguments

23The Objector and ACO’s arguments around s. 34 of the OHA are difficult to follow. Section 34 provides clear demolition control over designated properties and properties where a NOID has been issued but designation has not yet adopted by a municipality. This is not in dispute.

24The Objector and the ACO fail, however, in explaining how this clause gives additional jurisdiction to the Tribunal. Put simply: it does not. Furthermore, while not argued by either party, appeals from decisions made by a municipality under s. 34 were to the former Local Planning Appeal Tribunal (“LPAT”) and not the CRB. Even if this section gave jurisdiction to the Tribunal, which it does not, the appeal would be to LPAT and not the Tribunal acting with only the jurisdiction of the former CRB.

Jurisdiction

Does the Tribunal only have the Jurisdiction of the CRB?

25The arguments of the Objector and the ACO, in this regard, can be dealt with quickly. In advancing this argument, the Objector and the ACO failed to consider the transition rules established by O. Reg. 385/21.

26The regulation is clear: “A matter or proceeding that is mentioned in subsection (3) and commenced before July 1, 2021, shall be continued and disposed of under the Act as it read on June 30, 2021.”³ For greater certainty, this matter is a matter referenced in subsection (3) of the regulation.

27Thus, the Tribunal, in this matter, only has the jurisdiction of the former CRB as a result of O.Reg. 385/21.

Does the Tribunal have Jurisdiction without a Valid Objection?

28The Objector agrees, in her letter of objection and her submissions, that the property has CHVI. Instead, the Objector objects to the process by which the designation took place and the wording of the NOID itself. This goes directly to the heart of the City’s motion to dismiss. Thus, it is logical to begin with the role of the CRB, as it was then, and its jurisdiction.

29As the CRB noted in Trothen,

It is the duty of the Review Board, upon receiving an objection pursuant to the OHA, to conduct a public inquiry into the designation or repeal of designation of a property, to receive evidence regarding same, and, after carefully reviewing such evidence, to write a report with a recommendation on the matter to the municipality and allow the municipality, in light of this analysis by the Review Board, to reconsider, if applicable, its position.⁴

30Later, the CRB noted in Ferron:

The Review Board makes an independent assessment of the evidence of the parties in order to make its recommendations as to whether a subject property is one of cultural heritage value or interest or not within the parameters of the OHA. It is a subject matter expert in cultural heritage value or interest. It is not an expert in broader public policy issues that may shape a municipality’s final decision.⁵

31The Ontario Divisional Court, which hears appeals from tribunals, noted that:

The OH Act [the OHA] appears to confer upon the CRB the function of determining whether a property should be designated (s. 29(a)) … Logically its findings of fact should be restricted to the heritage merits of the property and as to which it may make its recommendation (which the Council must consider but need not necessarily follow - as Council did here). Council is not required to adopt the recommendations of the CRB…⁶ [emphasis added]

32The issue of the jurisdiction of the former CRB is well-settled law as outlined in the caselaw cited above. The Tribunal, having only the jurisdiction of the former CRB in this matter, has limited authority to act and a highly focused jurisdiction on evaluating whether or not a property has CHVI. It does this through an analysis of evidence presented to it through the framework of the designation criteria set out in O.Reg. 9/06. Based on this analysis, the Tribunal writes a report outlining its recommendations to the municipality in question, which it must consider the report but is not bound by it.

33What the Tribunal, in this matter, cannot do is investigate or review the decision-making processes of municipalities in reaching their decisions or the discretion granted to them. Again, to quote Trothen: “It is not a form of quasi-judicial review.”⁷ It cannot even cure prescriptive procedural defects on the part of a party.⁸ It certainly has no power to adjudge a municipality’s actions leading to the issuance of the NOID:

Yet, there is no indication in the OHA that the Legislature intended the Review Board to exercise a general authority to police a municipality’s compliance with the provisions of the OHA, or to interpret the provisions of the OHA “at large”, unrelated to its assigned task of making findings of fact and recommendations on whether a property has cultural heritage value or interest.⁹

34Nor was the CRB given any authority to compel a municipality to do or not do something:

The OHA is silent on the point, but it is presumed that any challenge to a municipality’s process in those cases would have to be advanced in court. Moreover, even in a case that comes before it, the Review Board is not given any remedial power to order a municipality to carry out any particular action. The Legislature could have given such power to the Review Board, but it did not do so.¹⁰

35Assuming that the Tribunal held a hearing in this matter, it would presumably receive no evidence of the cultural heritage value or interest and, thus, would have little to analyze and little upon which to make any recommendation within its jurisdiction since the issue is not in dispute. Assuming, again, that the Tribunal, instead, heard evidence in respect to the Objector’s concerns, it has no authority to do anything about the Objector’s concerns. It cannot compel the municipality to do anything; it may only make recommendations about designation. The Objector is therefore asking for a toothless exercise.

36Leaving aside these practical concerns, the Objector’s submissions are fatally flawed because, in effect, the Objector is asking the Tribunal to judicially review the municipality’s decisions regarding the drafting of the NOID, which is an area within its authority as a municipality. That authority is limited by other statutes, provincial government oversight, and the superior courts, which have the power to judicially review such discretion and authority, but not by this Tribunal acting under the former OHA.¹¹

37Furthermore, despite the arguments of the Objector and the ACO, the Tribunal has no inherent jurisdiction. Like all tribunals, of any kind, it only has the power given to it specifically by statute and no more. Only the superior courts have inherent jurisdiction, over all manner of things, being common law courts, unless a statute specifically assigns a particular jurisdiction elsewhere.

38It is clear, therefore, that the jurisdiction of the Tribunal, in this matter, is only in respect to making recommendations as to whether or not the subject property has CHVI and ancillary recommendations that might flow therefrom. It has no ability to adjudge the process and decision-making processes of the municipality. It cannot do what the Objector and the ACO asks of it in this matter.

Making Recommendations

39The Objector and ACO are quite correct that the Tribunal, in its former capacity as the CRB, was in the habit of offering recommendations to a municipality in respect to the drafting of statements of CHVI and identifying or revising potential heritage attributes. It had expertise in these matters.

40However, if the Tribunal, in this matter, has no jurisdiction to hear the matter, then it cannot proceed to hold a hearing and, as a result, cannot issue a report with its recommendations.

NOID

41There is no doubt that the Objector and participant raise grave concerns about the nature and scope of the NOID as drafted by the City (and the eventual bylaw should it be passed on the basis of the NOID). The City may not have properly considered the expert report, which it commissioned, on the property. It may not have properly drafted the NOID and mixed up heritage attributes and the statement of CHVI. Most troubling of all is the apparent attempt by the City to exempt Scouts Canada from the provisions of the OHA by bylaw when bylaws are inherently subject to provincial statute, which have primacy.

42These are important questions to be asked but the Tribunal has no authority to consider them. Unfortunately, the Objector and the ACO brought these concerns to the wrong forum. These questions, necessarily, must be tested by way of judicial review before the Divisional Court as a court of inherent jurisdiction with authority to review the municipality’s decisions and, if necessary, quash them.

CONCLUSION

43As the Objector’s objection discloses no grounds within the jurisdiction of the Tribunal in this matter, and for the reasons set forth above, the City of Oshawa’s motion is granted, and the Case Coordinator is directed to close this file forthwith.

“Daniel Nelson”

DANIEL NELSON MEMBER

Ontario Land Tribunal Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

Footnotes

1. 1See Clark v. Oshawa (City), 2021 CanLII 135929 (ON LT)
2. 2S.O. 2021, c. 4, Sched. 6, s. 2.
3. 3O.Reg 385/21, s. 18(2).
4. 4Trothen v. Sarnia (City), 2016 CanLII 29998 (ON CONRB), at para 45.
5. 5Ferron v. Niagara Falls (City), 2020 CanLII 94347 (ON CONRB) at para. 16.
6. 6Friends of Eden Mills Inc. v. Eramosa (Township), 1998 CanLII 17742 (ON SCDC), at para 15.
7. 7Trothen, supra, at para 44.
8. 8Hanlon Glen Homes Inc. v. Mississauga (City), 2021 CanLII 31904 (ON CONRB) at para. 5.
9. 9WAM Montez C & W Inc. v. Toronto (City), 2019 CanLII 106918 (ON CONRB) at para. 16
10. 10Ibid., at para. 18 (ON CONRB)
11. 11See the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Under the statute, judicial review applications are brought before the Divisional Court, which is a specialised branch of the Ontario Superior Court.