Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 01, 2023
CASE NO(S).: OLT-22-003794
PROCEEDING COMMENCED UNDER subsection 31(5) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended
Owner: The Corporation of the City of Cornwall
Objectors: Chris Bell, Nick Cox, James Dennis, Chris Granger, Richard Kake, Owen Granger, Réjeanne LeBlanc, Yvon and Lorraine Lemire, Carole Libbey, Wes Libbey, Earle MacPherson, Sara Racine, Sherry Seguin, Jacqueline St. John
Subject: Proposed Repeal of Designation By-law No. 134-2006 (Locomotive No. 17)
Property Address: Southeast corner of Brookdale Avenue and Ninth Street
Legal Description: Part of the West ½ of Lot 12, Concession 1
Municipality: City of Cornwall
OLT Case No.: OLT 22-003794
OLT Lead Case No.: OLT-22-003794
OLT Case Name: Bell v. Cornwall (City)
Heard: May 24 to May 25, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel/Representative*
The Corporation of the City of Cornwall
Emma Blanchard
Nick Cox
Carole Libbey*
Carole Libbey
Wes Libbey
REPORT OF THE TRIBUNAL DELIVERED BY DANIEL NELSON
OVERVIEW
1The City of Cornwall (“City”) seeks to repeal By-law No. 134-2006 designating the property located at the southeast corner of Brookdale Avenue and Ninth Street, being part of the West ½ of Lot 12, Concession 1, in the City of Cornwall (the “property”). Cornwall Street Railway, Light and Power Company Electric Motor No. 17, also known as Locomotive No. 17 (the “Locomotive No. 17” or the “Locomotive”), is situated on the property and both the Locomotive and the land upon which it sits is owned by the City.
2Various members of the community objected to the City’s desire to repeal the designation and the matter was referred to the Ontario Land Tribunal (“Tribunal”), which held a hearing to consider the objections.
3The Parties to the Hearing are:
City of Cornwall
Chris Bell
Nick Cox
James Dennis
Chris Granger
Richard Kake
Owen Granger
Réjeanne LeBlanc
Yvon and Lorraine Lemire
Carole Libbey
Wes Libbey
Earle MacPherson
Sara Racine
Sherry Seguin
Jacqueline St. John
Out of the Objectors noted above, only Nick Cox, Carole Libbey, Wes Libbey attended the hearing. Carole Libbey was previously appointed as a representative of the objectors.
4The Parties’ Joint Book of Documents was entered into evidence and relied on by all the Parties.
5It is important to note that this matter is governed by the Ontario Heritage Act (“OHA”) as it read on June 30, 2021, pursuant to O. Reg 385/21 (“former OHA”). The Tribunal, therefore, only has the jurisdiction of the former Conservation Review Board (“CRB”), which was amalgamated into the Tribunal by operation of the Ontario Land Tribunal Act.1 For clarity, references to the Tribunal throughout this Report 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.
6The list of exhibits entered into evidence at the Hearing is attached as Appendix 1 to this Report.
Background
7Locomotive No. 17 was originally built in 1930 in Philadelphia, Pennsylvania. After several owners, it was acquired by the Cornwall Street Railway, Light and Power Company in 1962. In 1971, the company was purchased by Canadian National Railways and, at that time, Locomotive No. 17 was retired and donated to the City.
8In 1981, the City placed Locomotive on display in front of the Cornwall Water Filtration Plant on Second Street where it remained until new construction on the site, starting in 2005, necessitated moving it. After considering a number of different locations, Locomotive was placed in its current location.
9The property was designated on June 26, 2006, by the City.
10Case Management Conferences were held on June 28, 2021, October 8, 2021, and February 9, 2022, and a hearing was held on February 17, 2022.
11There is only one issue before the Tribunal: should the By-law, which designates the property as a property of Cultural Heritage Value or Interest (“CHVI”) under s. 29 of the OHA be repealed in accordance with s. 31 of the OHA.
Relevant Legislation and Regulations
12The relevant legislation for this matter, and the criteria for the designation of a property under O. Reg 9/06, are set out in Appendix 2 hereto.
Case for the Owner
13The City’s position is that the designating by-law should be repealed. The City does not dispute the importance of the Locomotive to the history of the City. However, their position is that they placed the Locomotive, an important heritage artefact, on a featureless triangle of City-owned land between busy roads, with limited access, and, while the Locomotive is important, the property should never have been designated under the OHA. That vacant land has no heritage or associative value of its own and, the act of placing that Locomotive on that land did not thereby create any heritage value in that land. The City’s position is that the repeal is, in effect, an attempt to correct a designation error.
14The City called Michael Fawthorp, the City’s General Manager, Infrastructure and Municipal Works, who provided some general testimony on the reasons for moving the Locomotive from the former water filtration plant to its current location. In essence, City staff looked at a number of locations that were close to the water filtration plant, available, and City-owned. The current location met those criteria and was near a local tourism centre, which has subsequently closed.
15The City called, as their final witness, Sally Coutts, a heritage expert, who was, for the purposes of this Hearing, found to be an expert witness. She executed the requisite OLT Acknowledgement of Expert’s Duty form.
16Ms. Coutts’ position, shared by the City, is that this was an ill-founded designation as the location did not honour the history of the Locomotive. She argued that the placement of an artefact on an appropriate piece of land can give rise to heritage value and offered a number of examples where such an event could take place but argued, strongly, that that was not the case here.
17The site, if there is any value, only arises, in her view, because the Locomotive has been placed on it. The property, itself, does not speak to the industrial history of the City as there is no evidence of the railway history of the City without the Locomotive. Instead, the property is part of a typical urban commercial landscape, with shopping and surface parking. If there is any connection, it was placed near an original railway corridor, but staff report makes it clear that it was coincidental and not planned.
18Ms. Coutts did recognise the importance of the Locomotive. While in poor condition and deteriorating, it does assist in understanding the industrial history of the City. Even until the 1960s, the various factories spread throughout the City needed locomotives to move box cars over the urban tracks that crisscrossed it. Locomotive No. 17, arrived at the tail end of that era and, indeed, marks the final phase of the City’s urban track network.
19In her view, the Locomotive should have been placed near or in an extant car barn or one of the factories that it served, for example the remnants of the Canadian Cotton factory, or placed on a remnant of original urban track that crisscrossed the City.
20Ms. Coutts also reviewed Ontario designated properties to get a sense of how other locomotives or other artefacts were designated. She did find some examples, but each were appropriately connected to a place to enable a story to be told. There was an obvious link between the artefact and the land upon which that artefact had been placed.
Case for the Objectors
21The case for the Objectors, under the leadership of Carole Libbey, as representative of all of the Objectors, was more difficult to discern. In essence, the Objectors’ position is that moving the Locomotive to a museum some 100 km away, strips the City of an important heritage asset. She recognized that the current location was not ideal but was logical at the time, given its placement near a tourism office and near a former rail corridor no longer extant. She spoke passionately about the Locomotive’s role in telling the story of the history of the City and feared that it would become another lost element of that history. She read her witness statement as her examination-in-chief.
22Ms. Libbey attempted to call Wes Libbey as an expert witness, which was refused. Mr. Libbey did not have any applicable qualifications or professional designations to qualify him as such but, more significantly, was an objector, did not sign the Acknowledgement of Expert’s Duty form, and was the spouse of Carole Libbey. Considering this, the Tribunal was not satisfied that he could act as an impartial expert witness. For these reasons, Mr. Libbey was called as a witness only and not as an expert witness.
23Mr. Libbey, as examination-in-chief, read his detailed and thorough witness statement, which provided an overview of the history of the City, its industrial history, and the history of Locomotive No. 17. Regrettably, none of this testimony was assistive to the Tribunal. The importance of the Locomotive to the history of the City was not in dispute and the key question, regarding the land upon which the Locomotive sat, was not addressed in this testimony. Both Mr. and Ms. Libbey agreed that the best outcome was to relocate Locomotive No. 17 to the City’s Benson Centre, which inadvertently advanced the arguments of the City for, if the Locomotive could be moved to the Benson Centre, without damaging the historical value of the artefact, then there really could be no value to the land upon which the Locomotive sits.
Analysis
24The purpose of the OHA is to protect the heritage of Ontario. It does this by providing a mechanism by which real property (i.e., land) is designated and protected when that land, or the buildings or structures built thereon, have CHVI as determined by the designation criteria set out in O. Reg 9/06.
25Those buildings and structures are conceived by human minds and built by human hands. Alternatively, those human minds and human hands shape the landscape itself giving rise to what is known as a cultural landscape where there may be no buildings or structures at all.
26In the normal course, these buildings, structures, or cultural landscapes do not move, and the OHA was designed and drafted on that assumption but, of course, that is not always the case. The statute does not define the type of structure or building that is protected nor does it mandate that they must be permanently affixed to the land. A heritage building can, of course, be moved. There is no requirement for a minimum size or to be of a particular type: it could be a landscape or an outhouse. It is, instead, merely something that is constructed. It could, certainly, be a heritage artefact as an object of human workmanship or modification, that is placed upon the land. Thus, even the most minute constructed form can be protected provided, of course, that the property has CHVI.
27Museums and art galleries are stuffed with heritage artefacts. Undug archaeological sites are potentially full of such artefacts. Many heritage properties would, likewise, have artefacts contained in them. But that cannot, argumentum ad absurdum, trigger designation under the OHA. To expand the meaning of the OHA to capture all heritage artefacts would create an untenable situation and was clearly not the intention of the Legislature. Indeed, any attempt to legislatively protect all historically important moveable chattels, as heritage artefacts, would be Sisyphean.
28Instead, in the view of the Tribunal, there has to be something more to trigger protections than the happenstance of location. Likewise, to justify designation, placement cannot be transitory. Thus, to determine whether an artefact can give rise to designation under the OHA, there must be some:
i. Substantial or important connection between the artefact and the land that “ensure[s] the attainment of the legislature’s objectives” and gives rise to or supports the applicable CHVI;2 and,
ii. relative permanency in affixing the artefact to the land although such permanency cannot be absolute.
29Everyone agrees that Locomotive No. 17 is an important heritage artefact. The question before the Tribunal is whether the OHA is the appropriate tool to protect it. In this case, the Locomotive does have relative permanency in the location chosen. The Locomotive is inoperative, extremely difficult to move, and sits on track only slightly longer than the Locomotive itself. In short, it cannot move without significant intervention. However, as the City has shown persuasively, there is little to no connection between the Locomotive, as an artefact, and the land upon which it was situated. There is a tenuous connection to a former rail corridor, but it was, from the evidence shown, coincidental and not a factor considered by the City when it chose the location. Even the Objectors conceded that the Benson Centre would be a better location for the Locomotive.
30Thus, in the view of the Tribunal, Locomotive No. 17, as an important heritage artefact, does not have a substantial or important connection between itself and the land upon which it sits and, therefore, does not give rise to CHVI sufficient to justify designation.
31Despite this, the City chose to designate the property in 2006, which it argues, now, was a mistake and seeks to repeal the designation.
32The case law on repeal of designation is well-established. As set out in Trothen v. Sarnia: “the appropriate test for [the Tribunal] to apply when deciding whether all or part of a designation by-law should be repealed under s. 32, is whether the Property retains cultural heritage value or interest, as described in the designating bylaw, and as prescribed by O. Reg. 9/06.”3
33Now, it is important to note that the test set out in Trothen, above, applied to an owner-initiated repeal of designation. Subsequent case law established that that test applies equally to matters under s. 31 of the OHA as in this case: “While these are different sections of the OHA, and while the exact process steps may necessarily vary functionally, these two sections are the same and there is no reason why the test set out in Trothen, dealing with s. 32 would not equally apply to a repeal of designation under s. 31.”4
34The City has shown that the land in question never had CHVI of its own. The placement of the Locomotive was a matter of convenience and not an attempt to illuminate the history of the City. If the property never had CHVI then it cannot retain CHVI and the Trothen test is met, and repeal of designation is appropriate.
35The Tribunal is, therefore, satisfied, on the evidence before it, that there is no CHVI in the property in question, absent Locomotive No. 17, and that no such value was created by placing the artefact on such land.
36This conclusion should not, in any way, be understood to derogate from the importance of Locomotive No. 17 to the history of the City. Nor should it diminish the passion and zeal of the Objectors in protecting and illuminating that history. That passion comes through clearly in their witness statements and viva voce testimony. Unfortunately, it appeared that the Objectors were seeking to dispute the political decision to relocate the Locomotive to a museum in Smith’s Falls. If that was the case, they sadly advanced their case in the wrong forum. The Tribunal has no authority to judicially review the municipality’s relocation decision. This is a matter reserved exclusively to the superior and appellant courts.
Recommendations
37Having considered the evidence before it and the submissions of the Parties at the Hearing, and for the reasons set forth above, the Tribunal recommends that By-law No. 134-2006 be repealed.
38The question of where the Locomotive should be relocated to is, ultimately, a political question outside the jurisdiction of the Tribunal but the Parties are urged to carefully consider both the need for the physical preservation of the Locomotive together with the need to preserve the story of City of Cornwall’s industrial history for all local residents.
“Daniel Nelson”
DANIEL NELSON
MEMBER
Ontario Land Tribunal
Website: www.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.
APPENDIX 1
HEARING EXHIBIT LIST
Exhibit #
Nature of Exhibit and description
Filed By:
1
Notice of Hearing
OLT
2
Joint Book of Documents
Parties
APPENDIX 2
Ontario Heritage Act, RSO 1990, c. O-18
Relevant sections of the Ontario Heritage Act:
26 (1) In this Part,
“property” means real property and includes all buildings and structures thereon.
(2) In sections 27 to 34.4,
“designated property” means property designated by a municipality under section 29.
31 (1) Subject to subsection (2), where the council of a municipality intends to repeal a by-law or part thereof designating property, it shall cause notice of intention to repeal the by-law or part thereof to be given by the clerk of the municipality in accordance with subsection (3).
(2) Where the council of a municipality has appointed a municipal heritage committee, the council shall, before repealing a by-law or part thereof designating property, consult with its municipal heritage committee.
(5) A person who objects to a proposed repealing by-law shall object to the repealing by-law in the manner set out in subsection 29 (5).
(6) Subsections 29 (6) to (15.1) as they apply to an intention to designate a property apply with necessary modifications to an intention to repeal a by-law or part thereof designating a property under this section.
29 (7) Where a notice of objection has been served under subsection (5), the council shall, upon expiration of the thirty-day period under subsection (4), refer the matter to the Review Board for a hearing and report.
(8) Pursuant to a reference by the council under subsection (7), the Review Board, as soon as is practicable, shall hold a hearing open to the public to determine whether the property in question should be designated, and the council, the owner, any person who has filed an objection under subsection (5) and such other persons as the Review Board may specify, are parties to the hearing.
(12) Within thirty days after the conclusion of a hearing under subsection (8), the Review Board shall make a report to the council setting out its findings of fact, its recommendations as to whether or not the property should be designated under this Part and any information or knowledge used by it in reaching its recommendations, and the Review Board shall send a copy of its report to the other parties to the hearing.
Criteria for Determining Cultural Heritage Value or Interest
Criteria
- (1) The criteria set out in subsection (2) are prescribed for the purposes of clause 29 (1) (a) of the Act. O. Reg. 9/06, s. 1 (1).
(2) A property may be designated under section 29 of the Act if it meets one or more of the following criteria for determining whether it is of cultural heritage value or interest:
- The property has design value or physical value because it,
i. is a rare, unique, representative or early example of a style, type, expression, material or construction method,
ii. displays a high degree of craftsmanship or artistic merit, or
iii. demonstrates a high degree of technical or scientific achievement.
- The property has historical value or associative value because it,
i. has direct associations with a theme, event, belief, person, activity, organization or institution that is significant to a community,
ii. yields, or has the potential to yield, information that contributes to an understanding of a community or culture, or
iii. demonstrates or reflects the work or ideas of an architect, artist, builder, designer or theorist who is significant to a community.
- The property has contextual value because it,
i. is important in defining, maintaining or supporting the character of an area,
ii. is physically, functionally, visually or historically linked to its surroundings, or
iii. is a landmark. O. Reg. 9/06, s. 1 (2).
Footnotes
- S.O. 2021, c. 4, Sched. 6, s. 2.
- Tremblay v. Lakeshore (Town), 2003 CanLII 6354 (ON SCDC) at para. 15. See also, Black v. Niagara-on-the-Lake (Town), 2021 CanLII 44083 (ON CONRB) at para. 45.
- Trothen v. Sarnia (City), 2016 CanLII 29998 (ON CONRB) at para. 53 (hereafter “Trothen”).
- Ferron v. Niagara Falls (City), 2021 CanLII 23950 (ON CONRB), at para 24.