Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 08, 2024

CASE NO(S).: OLT-23-000087

PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended

Applicant and Appellant: 13983021 Canada Inc.

Subject: By-law 2022-055

Property Address: 82 Queen Street

Municipality/UT: Township of Puslinch

Reference Number: BL 2022-055

OLT Case No.: OLT-23-000087

OLT Lead Case No.: OLT-23-000087

OLT Case Name: 13983021 Canada Inc. v. Puslinch (Township)

Heard: January 31, 2024 in writing

APPEARANCES:

Parties	Counsel
13983021 Canada Inc.	Sara Premi
Township of Puslinch	Eric Davis

DECISION DELIVERED BY JENNIFER CAMPBELL AND ORDER OF THE TRIBUNAL

Link to the Order

INTRODUCTION

1This Decision arises from a settlement hearing (the “Hearing”) before the Ontario Land Tribunal (the “Tribunal”) regarding an appeal by 13983021 Canada Inc. (the “Appellant”) concerning the designation by the Township of Puslinch (the “Township”) of the subject property located at 82 Queen Street, Morriston, Ontario (the “Property”) as a property of cultural heritage value or interest under Section 29, Part IV of the Ontario Heritage Act, R.S.O. 1990, c. O.18 (the “Heritage Act”).

BACKGROUND

2The Property is an approximate one-half acre lot located on a main thoroughfare in the Township, and houses a two-and-a-half storey yellow brick residence built in or around 1910 or 1911, which is one of many Queen Ann/Edwardian style dwellings within the Township.

3The Township established the Puslinch Heritage Register on December 15, 2021. The Property was subsequently placed on the Puslinch Heritage Register as one of over 100 non-designated properties listed.

4The Appellant acquired the Property in August 2022, with the intention of pursuing a residential housing development, and subsequently applied for a demolition permit. Following the Appellant’s application for a demolition permit, the Township passed By-Law No. 2022-55, which designated the Property as a property of cultural heritage value or interest under Section 29 of the Heritage Act (the “Designation”).

5The Appellant appealed the Designation on grounds which may be generally summarized as follows:

(i) the Property had been made the subject of the Designation only after the Appellant sought to develop the Property;

(ii) the Property had not been properly evaluated under Ontario Regulation 9/06 – Criteria for Determining Cultural Heritage Value or Interest (“O. Reg. 9/06”), as there was no evidence that the Township had undertaken a formal cultural heritage evaluation; and,

(iii) the Township failed to comply with Ontario Regulation 385/21 (“O. Reg. 385/21”), which requires that the description of the heritage attributes of the Property must explain how each heritage attribute contributes to the cultural heritage value or interest of the Property.

6An initial Case Management Conference (the “First CMC”) was held on May 5, 2023, at which (i) Don McKay was granted Participant Status; and (ii) a second Case Management Conference was scheduled for September 28, 2023 (the “Second CMC”). At the First CMC, the Parties stated that the main area of disagreement was not related to whether the Property should be the subject of the Designation, but rather concerned the identification of its heritage attributes.

7By email, dated August 31, 2023, Eric Davis, on behalf of the Township, advised that the Parties had reached a settlement and wished to convert the Second CMC into a settlement hearing. By copy of such email, Mr. Davis also advised the Participant Mr. McKay of the status of the appeal and proposed settlement. The Second CMC was ultimately cancelled due to technical issues, and the Parties agreed to hold the Hearing in writing.

JOINT SUBMISSIONS

8As a result of the settlement between the Parties, the Appellant and the Respondent made the joint written submission to the Tribunal at the Hearing that:

(i) the appeal be allowed in part and the Property be designated under Section 29(1) of the Heritage Act;

(ii) By-Law No. 2022-55 be amended in accordance with By-Law No. 038-2023 of the Township, attached as Appendix “1” to this Order; and,

(iii) each Party shall bear their own costs in this matter.

9In support of their joint submission, the Parties submitted an Affidavit of Christienne Uchiyama (the “Affidavit”), who is the Principal and Manager of Heritage Consulting Services for LHC Heritage Planning and Archaeology Inc. (“LHC”). The Affidavit was accompanied by Ms. Uchiyama’s curriculum vitae and Acknowledgement of Expert’s Duty. Ms. Uchiyama’s curriculum vitae indicates extensive knowledge and experience with regard to heritage matters including a Master of Arts degree in heritage conservation; employment as a heritage consultant in various roles from 2008 to present; extensive project experience in heritage assessments; and a membership with the Canadian Association of Heritage Professionals. The Tribunal is of the view that Ms. Uchiyama has sufficient expertise in heritage matters to be qualified as an expert in such regard and accordingly, she is qualified to provide opinion evidence in the matters under review in this Hearing.

10The Appellant had retained LHC to undertake a Cultural Heritage Evaluation Report (“CHER”) of the Property. The CHER determined that the Property meets criteria 7 and 8 of O. Reg. 9/06 for its contextual value, and it also identified various attributes illustrating the cultural heritage value or interest of the Property, including its physical relationship with Queen Street, its form, scale and massing, and its two-and-a-half storey height, amongst others. The CHER is appended to the Affidavit as Exhibit “D”.

11Based on the CHER, By-Law No. 2022-55 was amended in accordance with By-Law No. 038-2023 of the Township to reflect the findings of the CHER, including the identification of appropriate heritage attributes. By-Law No. 038-2023 is appended to the Affidavit as Exhibit “E”, and to this Order as Appendix "1". The Affidavit states that in the opinion of Ms. Uchiyama, By-Law No. 038-2023 is supported by the CHER, including on the basis that:

(i) The residence on the Property was constructed circa 1910, in a vernacular style with Queen Anne, Edwardian and Gothic Revival design influences;

(ii) The residence is part of a cluster of four properties developed by the Morlock family between 1854 and 1910;

(iii) The Property meets criterion 7 of O. Reg. 9/06 for its contextual value because it is important in defining, maintaining and supporting the character of the area comprising the cluster of properties owned, subdivided and developed by the Morlock Family;

(iv) The Property meets criterion 8 of O. Reg. 9/06 for its contextual value because it is historically linked to the adjacent properties on Rear Concession 7, Lot 32. This historical link pertains to the contribution of the Property towards understanding the settlement, farming successes, wealth accumulation and growth of the Morlock Family between 1854 and 1910; and,

(v) The Statement of Cultural Heritage Value or Interest and list of heritage attributes included in By-Law No. 038-2023 are derived from the research, analysis and evaluation of the Property as outlined in the CHER.

12The Tribunal accepts the analysis and conclusions set forth in the Affidavit, and finds that By-Law No. 038-2023 is supported by the CHER. Accordingly, the Tribunal finds that the Appeal be allowed in part and that the Property be designated under Section 29(1) of the Heritage Act, in accordance with By-Law No. 038-2023.

ORDER

13THE TRIBUNAL ORDERS that the Appeal is allowed in part and that the property be designated under Section 29(1) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended.

14THE TRIBUNAL FURTHER ORDERS that the Corporation of the Township of Puslinch Designation By-law No. 2022-55 dated December 21, 2022, is amended in accordance with the Corporation of the Township of Puslinch Designation By-law No. 038-2023, attached as Appendix “1” to this Order.

15THE TRIBUNAL FURTHER ORDERS that each Party shall bear their own costs.

“Jennifer Campbell”

JENNIFER CAMPBELL 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