Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 21, 2024
CASE NO(S).: OLT-24-000542
PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18.
Appellant: Irena Poklewska-Koziell and Lech Poklewski-Koziell
Appellant: Malgorzata (Margo) Poklewska-Koziell
Subject: Heritage – By-Law 2024-172
Description: Objection to passing of By-law to designate a heritage property
Reference Number: By-Law 2024-172
Property Address: 888 Montreal Street
Municipality/UT: Kingston/Frontenac
OLT Case No: OLT-24-000542
OLT Lead Case No: OLT-24-000542
OLT Case Name: Poklewski-Koziell v. Kingston (City)
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Lech Poklewski-Koziell
Request for: Request for Directions
Heard: October 30, 2024 by Video Hearing
APPEARANCES:
Parties
Counsel
Lech Poklewski-Koziell
Ningjing (Natalie) Zhang
Malgorzata (Margo) Poklewska-Koziell
Ningjing (Natalie) Zhang
City of Kingston
Andrew Reeson
MEMORANDUM OF ORAL DECISION DELIVERED BY S. Dixon ON October 30, 2024 AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This Decision and Order arises from a hearing regarding a motion for directions (“Motion”) filed by Lech Poklewski-Koziell (“Appellant”) in relation to an appeal filed pursuant to s. 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended (“OHA”), concerning the passing of Heritage Designation By-law No. 2024-172 (“Heritage By-law”) in the City of Kingston (“City”).
2The Heritage By-law designates the Appellant’s property, known municipally as 888 Montreal Street (“Subject Lands”), as a property of cultural heritage value and interest.
3The Appellant and his wife, Irena Poklewska-Koziell, filed a joint appeal in opposition to the Heritage By-law as it applies to the Subject Lands. The Appellant’s daughter, Malgorzata Poklewska-Koziell, filed a second appeal (under the name Margo Poklewska-Koziell) for the same general purpose, though the reasons for appeal provided in each notice of appeal vary.
4Following the initial appeal, Irena Poklewska-Koziell passed away, leaving her husband as the sole appellant in their joint appeal.
5To date, no hearing on the merits of the appeals has been scheduled.
MOTION
6The Motion filed by the Appellant sought four orders of the Tribunal, as follows:
An order for a publication ban prohibiting the publication, broadcasting, or transmission of: (a) the names of the Appellant; (b) any information that could identify the Appellant; (c) specific financial information related to the Appellant; and (d) detailed personal information about the Appellant’s circumstances (collectively, “Motion 1”).
An order recognising the Appellant as the litigation guardian for his deceased wife and permitting the appeal to continue with Mr. Poklewski-Koziell as the sole appellant (“Motion 2”).
An order recognising Malgorzata Poklewska-Koziell, the daughter of the Appellant, as the continuing power of attorney for the Appellant and authorising her to represent the Appellant in all matters related to the appeal (“Motion 3”).
An order granting leave to amend the reasons for appeal on the grounds that the original appeal was filed by the Appellant without legal advice, prior to the retention of counsel (“Motion 4”).
EXHIBITS
7The Tribunal was in receipt of and marked the following documents as exhibits:
Affidavit of Service of Ningjing Zhang, sworn October 10, 2024;
Notice of Motion by Irena Poklewska-Koziell and Lech Poklewski-Koziell;
Affidavit of Service of Jen Doupe, sworn October 21, 2024;
Notice of Response to Motion by the City of Kingston (“Response Motion”); and
Notice of Reply to Response to Motion by Irena Poklewska-Koziell and Lech Poklewski-Koziell.
ANALYSIS AND FINDINGS
Motion 1
Submissions
8Counsel for the Appellant submitted that the grounds for Motion 1 (i.e., the publication ban/confidentiality order) are that the Appellant has a legitimate interest in protecting their personal information – including any sensitive financial information – from unnecessary public disclosure, which could lead to unwarranted attention, potential harassment, or other forms of hardship. Counsel further noted the Appellant’s age, stating that as a senior citizen, he is “of a potentially vulnerable population.”
9At the direction of the Tribunal, counsel for the Appellant clarified that the “potential harassment or other forms of hardship” referenced as a ground for Motion 1 were related to the Subject Lands being a corner lot that is easily accessible to the public and that has already been subject to trespassing following the City’s consideration of the Subject Lands as part of the Heritage By-law.
10While the City took no formal position on the Appellant’s request, the City’s Response Motion (Exhibit 4) notes the “very broad and restrictive confidentiality order” being requested, and the scant evidentiary basis for same. The Response Motion directs the Tribunal to Rules 22.1 and 22.2 of the Tribunal’s Rules of Practice and Procedure (“Rules”), which state:
22.1 Hearings to be Public: All Tribunal hearing events will be open to the public except where the presiding Tribunal Member determines that the hearing event is to be heard in private, such as a mediation or the exceptions to a public hearing set out in relevant legislation or regulation, such as subsection 9(1) of the SPPA.
22.2 Confidentiality Orders: The Tribunal may order that any document filed in a proceeding be treated as confidential and not be disclosed to the public where the Tribunal is of the opinion that:
a) matters involving public security may be disclosed; or
b) the document contains information regarding intimate financial or personal matters or other matters that are of such a nature that the public interest or the interest of the person affected outweighs the desirability of adhering to the principle that documents filed in a proceeding be available to the public.
11The Tribunal was further directed to s. 2(1) of the Tribunal Adjudicative Records Act, 2019, S.O. 2019, c. 7, Sched. 60 (“TARA”), which states:
Adjudicative records public
2 (1) A tribunal shall make those adjudicative records in its possession that relate to proceedings commenced on or after the day this section comes into force available to the public in accordance with this Act, including any rules made under section 3.
12Section 2(2) of the TARA contains similar language to Rule 22.2 of the Tribunal’s Rules concerning confidentiality orders.
13The City further submitted that, in considering the Appellant’s request, the Tribunal must carefully weigh the Appellant’s concerns against the Legislature’s expression of public interest in fully open and transparent public hearings and publicly available documents filed in connection with such hearings.
14Finally, in response to the Appellant’s concerns regarding detailed financial information, counsel for the City submitted that, while one of the bases for the appeal is that the designation of the Subject Lands as a property of cultural heritage value and interest may cause some sort of undue financial hardship for the Appellant, it has consistently been held by the Tribunal and other adjudicative bodies that financial implications of heritage designations – perceived or otherwise – are not a relevant factor or consideration in the tests to determine whether a property has been appropriately designated. The Tribunal gathered from this submission that, in the City’s view, the production of the Appellant’s intimate financial records will likely not be necessary in determining the merits of the Heritage By-law.
Findings
15The Tribunal agreed with the submissions of the City, noting that the Tribunal has a public interest mandate conferred upon it by the Legislature that lends itself to certain longstanding principles regarding the public nature of the Tribunal’s proceedings. Chief among those principles is that appeals and the proceedings related thereto, including the documents filed in a proceeding, are open and available to the public.
16In addition to the substantial public policy principles at stake, the Tribunal is mindful of the resulting impact that such sweeping restrictions would have on the Tribunal’s internal procedures and the open and transparent conduct of its proceedings.
17Accordingly, the Tribunal has established a high threshold for the issuance of a confidentiality order, which is a rare, atypical, and otherwise extraordinary remedy in any litigation before the Tribunal. Simply put, by filing an appeal, an appellant submits themselves to a public process.
18This is reflected in Rule 22.2 of the Rules, which notes “the desirability of adhering to the principle that documents filed in a proceeding be available to the public.” Examined more closely, Rule 22.2 speaks not only to the principle of public proceedings, but also to the Tribunal’s consideration of confidentiality orders on a document-by-document basis. In other words, there is no explicit basis in the Rules for considering the type of broad confidentiality order being sought by the Appellant.
19To date, there has been no production of any documents beyond the typical municipal (and already public) materials submitted in response to the appeal and the exhibits listed in Paragraph [7], above.
20In that regard, the Tribunal finds that the evidentiary basis for the broad and sweeping request for a confidentiality order long before a hearing on the merits has commenced is scant and uncompelling.
21The requested relief was therefore denied, and Motion 1 was dismissed.
22Notwithstanding the above findings, the Tribunal clarified that its ruling in this regard will not prevent the Appellant from bringing future motions for confidentiality orders on a document-by-document basis, which will be determined on their individual merits by the presiding Member at such time said motions are heard.
Motion 2
Findings
23The initial appeal was filed jointly by both the Appellant and his wife, Mrs. Poklewska-Koziell. With the unfortunate passing of Mrs. Poklewska-Koziell, the Tribunal found it reasonable and within its jurisdiction to recognise that the appeal is no longer being carried on by both individuals and ordered that Mr. Poklewski-Koziell shall be substituted as the appellant party. In that regard only, the motion was granted in part.
24Regarding the specific relief within Motion 2 requesting an order of the Tribunal recognising the Appellant as the litigation guardian for his late wife for the purposes of carrying on the appeal, the Tribunal did not find such relief to be necessary nor explicitly within the Tribunal’s jurisdiction. In that regard, the motion was dismissed in part.
Motion 3
Submissions
25Motion 3 asks that the Tribunal issue an order: (a) recognising the Appellant’s daughter, Malgorzata Poklewska-Koziell, as his continuing power of attorney; and (b) authorising her to represent the Appellant in all matters related to his appeal.
26With respect to part (b), counsel for the Appellant clarified that, notwithstanding the request to have Ms. Poklewska-Koziell “represent” her father in all matters related to his appeal, the requested relief was not intended to suggest that legal representation of the Appellant by Ms. Zhang would discontinue. To the contrary, Ms. Zhang confirmed for the Tribunal that she will continue to represent both the Appellant and his daughter in their respective appeals.
27Ms. Zhang then clarified that the intent of the requested relief was to recognise that the Appellant spends much of his time abroad, and therefore may not be able to attend future hearing events.
Findings
28With respect to part (a) of Motion 3, the Tribunal does not have the jurisdiction to name or recognise a power of attorney, nor is such recognition relevant to these proceedings.
29With respect to part (b) of Motion 3, no further action is required by the Tribunal or the Parties given the Appellant’s intent to maintain Ms. Zhang as his legal representative. The Appellant’s personal attendance at future hearing events is voluntary so long as he maintains legal representation or, in the alternative, identifies a new representative to attend the proceedings on his behalf.
30Accordingly, Motion 3 was dismissed.
Motion 4
Submissions
31In the Notice of Motion (Exhibit 2), the Appellant states that the proposed amendments to the reasons for appeal sought in Motion 4 will clarify and refine the legal issues to be addressed in the appeal, ensure that all relevant grounds for appeal are properly articulated, and remove any extraneous or irrelevant information from the original reasons for appeal.
32The grounds for Motion 4 further state that, “The amendments will not introduce new issues that are substantially different from the original appeal.”
33Having examined the draft amended reasons for appeal (“Revised Reasons”), the Tribunal was not convinced of the latter submission that no new issues were being proposed beyond those submitted in the initial appeal. Indeed, when questioned by the Tribunal, counsel for the Appellant agreed that new points had been raised in the Revised Reasons.
34Counsel for the Appellant further submitted that the Revised Reasons would provide better legal arguments and more focused planning objectives, which were not mentioned in the initial reasons for appeal given that the Appellant filed the appeal without the benefit of legal advice. Counsel further clarified that the requested relief was to “re-open the reasons for appeal”, such that the Revised Reasons would replace the original reasons.
35In their Response Motion, the City consents to the Revised Reasons. At the hearing, counsel for the City clarified that the City’s consent was provided on the basis that the Revised Reasons abandon a number – though not all – of irrelevant issues that were raised in the initial notice of appeal.
Findings
36Section 29(11) of the OHA permits any person who objects to a heritage designation by-law to appeal to the Tribunal by filing a notice of appeal, setting out the objection to the by-law and the reasons to support the objection, within 30 days of the adoption of the by-law.
37Nothing in the OHA provides an appellant, nor the Tribunal, with the ability to extend the statutory timeframes for the filing of an appeal set out in s. 29(11). The Tribunal is of the view that retroactively changing the reasons for an appeal has the effect of doing just that.
38There are also no statutory provisions of the OHA, the Ontario Land Tribunal Act, or the Statutory Powers Procedure Act for the amendment of a notice of appeal, nor is any express authority granted to the Tribunal for that purpose. Similarly, there are no provisions in the Tribunal’s Rules that provide for the amendment of a notice of appeal. Rather, Rule 5.1 (c) of the Tribunal’s Rules requires that an appellant must, when filing an appeal:
(c) state the statutory origin or authority and nature of the matter, adequately detailed reasons upon which the matter is being brought before the Tribunal, and the order requested;
39Whether the Appellant had legal representation at the time they filed the appeal is irrelevant. While the Tribunal appreciates that self-represented litigants may be less familiar with the Tribunal’s Rules and processes, all litigants are nonetheless expected to familiarise themselves with the procedural requirements and applicable laws prior to filing an appeal.
40The Appellant, like the Tribunal, is bound by the statutory provisions of the OHA, which set out strict and mandatory procedural requirements for the notice of appeal that apply to any and all appellants. While the Parties, including the Appellant, are permitted (and perhaps expected) to refine and articulate the reasons for appeal already contained in the notice of appeal when drafting an issues list for the Tribunal’s consideration, that procedural exercise does not involve the creation or addition of new reasons, grounds, or issues that were not set out in the notice of appeal.
41In this instance, the Tribunal finds that the amended reasons for appeal go beyond the procedural exercise of refining issues related to the original reasons for appeal, and that the Revised Reasons seek to introduce new issues outside of the scope of those articulated in the notice of appeal.
42Accordingly, the requested relief was denied and Motion 4 was dismissed.
NEXT STEPS
43As no further hearing dates had been established for these proceedings, the Tribunal canvassed the Parties’ availability for a case management conference (“CMC”) and scheduled a one-day CMC to be held by video hearing on Thursday, February 6, 2025 at 10 a.m.
44The Parties were directed to provide the Tribunal with a draft procedural order and issues list by no later than Friday, January 31, 2025. The Parties are expected to be prepared to ask for hearing dates at the CMC, taking into consideration the number and types of witnesses that may be required.
45Parties are asked to log in to the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Meeting: https://global.gotomeeting.com/join/687587165
Access Code: 687-587-165
46Parties are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
47Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: 1-647-497-9373 or (Toll Free) 1-888-299-1889. The Access Code is as indicated above.
48Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the video hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
ORDER
49THE TRIBUNAL ORDERS that Lech Poklewski-Koziell is to be substituted as the sole appellant in the appeal initially filed jointly by Lech Poklewski-Koziell and Irena Poklewska-Koziell. For clarity, the appeal by Malgorzata (Margo) Poklewska-Koziell is unaffected by this order and remains as an active appeal to these proceedings.
50THE TRIBUNAL ORDERS that in all other regards, the Motion is dismissed.
51THE TRIBUNAL ORDERS that a draft procedural order and issues list are to be submitted to the Tribunal by no later than Friday, January 31, 2025.
52No further notice is required.
53This Member is not seized.
“S. Dixon”
s. dixon
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.