Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 03, 2024 CASE NO(S).: OLT-23-000229

PROCEEDING COMMENCED UNDER subsection 42(6) of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as amended

Applicant/Appellant: Asadullah Azizi Subject: Appeal of conditions Description: To permit demolition with terms and conditions Property Address: 11172 Warden Avenue Municipality/UT: City of Markham OLT Case No.: OLT-23-000229 OLT Lead Case No.: OLT-23-000229 OLT Case Name: Azizi v. Markham (City)

Heard: October 25, 2023 by Video Hearing

APPEARANCES:

Parties	Counsel/Representative*
Asadullah Azizi	Self-represented*

DECISION OF THE TRIBUNAL DELIVERED BY D. NELSON

INTRODUCTION

1The City of Markham (“City”) designated the property located at 11172 Warden Avenue, and known as Clayton Schoolhouse, SS#12 (“Subject Property”), in 1982 by designation By-Law No. 187-82, pursuant to the provisions of the Ontario Heritage Act (“OHA”).

2Sadly, the property was apparently damaged by a fire on December 25, 2022, following which the owner, Asadullah Azizi (“Appellant”), applied to have the designation By-law repealed. That request was denied, and he has appealed to the Ontario Land Tribunal (“Tribunal”).

3A Merit Hearing was held on October 25, 2023. The Appellant, acting pro se, and his expert witnesses duly appeared at the Hearing. Strangely, no one from the City appeared, which forced the Tribunal to put the hearing on hold while the Case Coordinator was asked to contact the City to find out why their representatives were not there.

4The Case Coordinator was only then told that no one would be appearing on behalf of the City and no one, on behalf of the City, would be making submissions either. While unexpected, it is certainly a decision open to the City to make, but the failure to communicate this decision, until asked, after the Hearing commenced, was inappropriate and cannot go unremarked. To have failed to notify the Tribunal, in advance of the Hearing, and forcing the Tribunal to wait until this could be confirmed is extraordinarily disrespectful and should not be repeated.

5As a result of the City’s decision, the Hearing was converted, with the consent of the Appellant, into a written hearing and it proceeded on this basis.

6This is a difficult case, not because of the facts of the matter, but because of the behaviour of the Parties. The City chose not to participate, and the Appellant chose not to seek legal advice and appears to have retained a number of engineers instead.

7Of course, it is trite to say, but the Tribunal cannot provide legal advice to a Party. Nevertheless, since the Appellant chose to appear pro se, he was urged by the Tribunal to review the statute, the caselaw, and the Tribunal’s Rules of Practice and Procedure (“Rules”). Furthermore, the Case Coordinator, in a subsequent email, specifically directed him to Rule 21.4 of the Rules which requires that all evidence in a written hearing be sworn/affirmed in affidavit form so it could be properly considered. These evidentiary requirements are set out in the Rules, and available to anyone. Regrettably, it does not appear that he availed himself of these resources nor did he seek legal advice.

8Pursuant to that written reminder from the Case Coordinator, on October 26, 2023, the Appellant did submit a single affidavit to the Tribunal swearing that a copy of the designation By-law for the Subject Property that was attached to his affidavit was a true copy of the original. No other evidence was placed in the affidavit and, it is, at best, unclear, whether he truly had the capacity and personal knowledge to swear that the designation By-law was, in fact, a true copy.

9Evidence before a Court or Tribunal must be sworn or affirmed in order to be considered. Either a witness is sworn or affirmed when giving viva voce testimony, or the evidence is provided in writing by way of affidavit, which is likewise sworn or affirmed. Nothing else can be properly considered although, as an aside, a Judge or Adjudicator can take judicial notice of a common fact that is so well-known that it cannot be doubted, but that is not at issue here.

10Assuming that the Appellant had capacity to confirm that the copy of the designation By-law was, indeed, a true copy, then the existence of the By-law, which is not really at issue in this matter, is the only evidence that the Tribunal can consider.

11Now, having said that, there were a number of expert reports filed with the Tribunal as part of the pre-hearing process and in anticipation of a viva voce hearing but, for the reasons referenced above, they cannot be considered since they were not submitted in affidavit form. The Tribunal finds that even if they were properly entered as evidence, a cursory review of these reports shows that they failed to answer the question before the Tribunal. The condition of the building is not a criterion under the O. Reg. 9/06 of the OHA.

12That question, of course, is whether the designation By-law, since the fire, should be repealed. There are no criteria set out in the OHA in respect to repeal of designation; instead, the well-established test for repeal of designation is set out in para [53] of Trothen v. Sarnia (City), 2016 CanLII 29998 (ON CONRB):

… 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…¹

13In this case, the Tribunal requires evidence that the fire destroyed the cultural heritage value or interest of the Subject Property, particularly as it relates to the heritage attributes that support that cultural heritage value or interest.

14There is, as discussed above, no evidence to support that determination, but it is important to note that a fire, or the destabilisation of a property resulting from a fire does not automatically give rise to grounds for repeal of designation. Instead, there must be a careful review of the Statement of Cultural Heritage Value and Interest, as set out in the designation By-law and the Heritage Attributes and, through evidence of the Parties, the Tribunal must determine whether there has been sufficient loss that results in a lack of cultural heritage value or interest.²

15As in the Divisional Court, in Tremblay v. Lakeshore (Town), 2003 CanLII 6354 (ON SCDC) at para. [15], noted: “Those provisions of the Act must be applied in such a way as to ensure the attainment of the legislature's objectives.”³ That clear purpose, of course, is the preservation of the built cultural heritage of the Province of Ontario and a pro forma presumption in favour of repeal cannot ensure the attainment of the legislature’s objectives.

16The Tribunal is further hamstrung in its analysis of the matter because the Appellant’s affidavit, which is the only evidence before it, contains Schedule “A” to the designation By-law, setting out the legal description but, despite purporting to be a “true copy” does not contain Schedules “B”, “C”, “D”, “E”, and “F” wherein the reasons for designation are set out. These missing schedules can be easily ascertained, as the designation By-law specifically indicates the existence of these schedules and states that they form part of the designation By-law. The Tribunal, even if it did have evidence before it, cannot undertake an effective analysis to determine whether the fire triggered a loss of cultural heritage value or interest as a result of this missing critical information.

17Given the passage of the designation By-law, which was not contested, the Tribunal, in this matter, must presume that the Subject Property, but for the fire, had cultural heritage value or interest and, of course, a fire, by itself cannot give rise to an automatic presumption in favour of repeal of designation. Therefore, the Subject Property must continue to have cultural heritage value or interest in the absence of any evidence to the contrary.

ORDER

18Having considered the evidence before it, and for the reasons set forth above, the Tribunal declines to order to repeal of the designation By-law and orders that the Appeal be dismissed.

“D. Nelson”

D. 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.

Footnotes

1. 1Trothen v. Sarnia (City), 2016 CanLII 29998 (ON CONRB), at para 53.
2. 2This is an older bylaw, adopted under an earlier iteration of the OHA and it may or may not include a clearly delineated Statement of Cultural Heritage Value or Interest and may not have specifically enumerated heritage attributes. This is not unusual. The City should, however, update it in accordance with s. 30.1(2) of the OHA.
3. 3Tremblay v. Lakeshore (Town), 2003 CanLII 6354 (ON SCDC) at para. 15 See also St. Peter's Evangelical Lutheran Church v. Ottawa, 1982 CanLII 60 (SCC), [1982] 2 SCR 616 at page 625 where the majority of Supreme Court of Canada noted with approval the words of MacKinnon ACJO who wrote “The Act is a remedial one and should be given a fair and liberal interpretation to achieve those public purposes which I have recited.”