10725 Kennedy Developments Limited v. Markham (City), 2025 CanLII 14507

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 21, 2025

CASE NO(S).: OLT-24-000314

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

Applicant/Appellant: 10725 Kennedy Developments Limited

Description: Designate the Francis and Mary Walker House as a heritage property

Reference Number: By-Law 2024-30

Property Address: 10725 Kennedy Road

Municipality/UT: Markham/York

OLT Case No: OLT-24-000314

OLT Lead Case No: OLT-24-000314

OLT Case Name: 10725 Kennedy Developments Limited v. Markham (City)

Heard: February 4 - 5, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel
10725 Kennedy Developments Limited	Kristie Stitt Sarah Kagan Ira Kagan (in absentia)
City of Markham	John Hart

DECISION DELIVERED By Kurtis Smith AND ORDER OF THE TRIBUNAL

Link to Final Order

EXECUTIVE SUMMARY

1The City of Markham (“Markham”) passed By-law 2024-30 (“By-law”) designating 10725 Kennedy Road (“Subject Property”). The Subject Property contains a one-storey brick dwelling known as the Francis and Mary Walker House (“Dwelling”) in the crossroads community of Cashel.

2To be eligible to be designated under subsection 29(1) of the Ontario Heritage Act, R.S.O. 1990, c. O.18 (“Act”), a minimum of two criteria must be met. Markham’s By-law outlines three criteria that are met.

310725 Kennedy Development Limited (“Kennedy”), the owner of the Subject Property, objected to the designation, stating that not one criterion is met, and the By-law should be repealed.

4For the reasons below, the Tribunal finds that the Subject Property meets one of the criteria of the Act. Therefore, the Tribunal orders the By-law to be repealed.

BACKGROUND

5The Tribunal held a two-day Hearing on the Merits of the By-law designation of the Subject Property.

6Due to the deadline imposed for heritage designations by Bill 23, Markham staff veered from their typical process. Markham staff recommended a streamlined process to determine the applicability and urgency of each property. Staff prepared an evaluation report, process report, and memorandum regarding the streamlined process, which was supported by the Heritage Markham Committee and approved by Markham Council. The aforementioned documents are found in Exhibit 1, Tab 16 to 18.

7A property is eligible for designation under subsection 29(1) of the Act if it meets two of the nine criteria set out in subsection 1(2) of O. Reg. 9/06. Markham Council determined that three criteria were met relating to the Subject Property:

1. The property has design value or physical value because it is a rare, unique, representative or early example of a style, type, expression, material, or construction method.

   • Rectangular plan;
   • Fieldstone foundation;
   • Brick masonry with projecting plinth and splayed arches over the door and window openings;
   • Hip roof with projecting, boxed eaves;
   • Three-bay configuration of the primary (west) foundation;
   • Single-leaf front door opening with rectangular transom light featuring geometric;
   • Multi-paned glazing; and
   • Flat-headed rectangular window openings with two-over-two paned single-hung windows.

2. The property has historical value or associative value because it has direct associations with a theme, event, belief, person, activity, organization, or institution that is significant to a community.

   • The dwelling is a tangible reminder of the Walker family that historically resided here and the blacksmith shop, an important local industry within Cashel that operated on the property from c.1850 to 1884.

3. The property has contextual value because it is important in defining, maintaining or supporting the character of an area.

   • The location of the building facing west, within the historic crossroads hamlet of Cashel.

8Kennedy objects to all three criteria: 1, 4, and 7.

[9] Four exhibits were marked during the Hearing:

• Exhibit 1: Joint Document Book;
• Exhibit 2: Architectural Styles;
• Exhibit 3: June 2023, Street View Photo, Angle 1; and
• Exhibit 4: June 2023, Street View Photo, Angle 2.

10Two witnesses, Mr. Evan Manning, on behalf of Markham, and Ms. Christienne Uchiyama, on behalf of Kennedy, were qualified as heritage planners and provided written, oral, and visual evidence to the Tribunal to support their findings on the Subject Property and By-law.

SUBJECT PROPERTY AND COMMUNITY CONTEXT

11The Subject Property is located approximately 120 metres south of the intersection of Kennedy Road and Elgin Mills Road East, which is known as the crossroads community of Cashel. The Subject Property is generally rectangular in shape and is approximately 0.39 hectares, densely populated with trees, and boasting three structures: the Dwelling, one outbuilding to the east of the Dwelling, and one outbuilding to the southwest of the Dwelling.

12To the south of the Subject Property is a 2000’s-built dwelling, and agricultural lands to the north and east. The “Archibald Fenwick House” stood to the north of the Subject Property until 2009, when it was relocated to the Markham Heritage Estates neighbourhood. The heritage-designated Cashel Road House remains at 4510 Elgin Mills Road East, which is notably located on the northeast corner of the intersection of Cashel. No other heritage structures remain standing in the Cashel community.

HERITAGE EVIDENCE

Criterion 1: The property has design value or physical value because it is a rare, unique, representative, or early example of a style, type, expression, material, or construction method.

13Mr. Manning opined that the Dwelling has design value and physical value as a representative example of a tradesman’s dwelling designed in an Ontario Cottage style.

14Mr. Manning explained that a blacksmith shop once stood, in an unknown location, on the Subject Property from 1850 to 1884. The shop owner/operator resided in the Dwelling. Therefore, Mr. Manning determined that the dwelling represents a tradesmen's dwelling.

15He went on to outline the heritage attributes of the Dwelling, as listed above in Paragraph 7, to support his findings that the dwelling is representative of an Ontario Cottage style.

16Ms. Uchiyama opined that Criterion 1 is not met because the Subject Property does not have design value or physical value because it is a rare, unique, representative, or early example of a style, type, expression, material, or construction method.

17Ms. Uchiyama communicated that the Dwelling does not demonstrate the details or decoration that defines an Ontario Cottage style. She went on to explain that the Dwelling has common characteristics of a vernacular building, with influences from the Ontario and Regency cottage styles. Ms. Uchiyama directed the Tribunal’s attention to Exhibit 1, Page 321, which displays exemplary Ontario Cottage style dwellings found in Markham.

18Furthermore, Ms. Uchiyama communicated that the loss of the blacksmith shop on the Subject Property dissolves the direct link of the Dwelling as being a “tradesmen’s” residence.

Criterion 4: The property has historical value or associative value because it has direct associations with a theme, event, belief, person, activity, organization, or institution that is significant to a community.

19Mr. Manning opined that Criterion 4 is met as the Subject Property is linked to the economic development of Markham and the significant theme of immigration, particularly families of British origin that arrived in the first half of the nineteenth century. He went on to state that the Dwelling is a tangible reminder of the Walker family, who resided in the dwelling and the blacksmith shop.

20Ms. Uchiyama opined that Criterion 4 is not met. She communicated that Francis Walker was the only closely associated owner of the Subject Property, who had built the Dwelling and operated the blacksmith shop. She went on to explain that blacksmith shops served an important role in the community. However, she stated that there is no evidence to suggest that blacksmiths were any more significant than other forms of employment.

21As it relates to immigration, Ms. Uchiyama opined that the theme of immigration could be stated in most, if not all, properties that she has evaluated in her career. She went on to state that there is no evidence of a direct association between immigration and the Subject Property.

Criterion 7: The property has contextual value because it is important in defining, maintaining, or supporting the character of an area.

22Mr. Manning opined that the Subject Property has contextual value as the Dwelling is important in defining, maintaining, and supporting the character and extent of the community of Cashel. He elaborated that the close proximity to the intersection and the Cashel Road House is important to the contextual value of the Dwelling.

23Mr. Manning confirmed through his cross-examination that the Dwelling itself is barely visible from the road due to the density of the tree coverage.

24Ms. Uchiyama communicated that the Subject Property and the surrounding residential properties in the area generally have a dense tree canopy and range considerably in setback distances. Specifically, the Subject Property’s dense tree coverage screens the view of the Dwelling from the road, as shown in Exhibit 3 and Exhibit 4.

25Ms. Uchiyama opined that Cashel does not have a distinct character. Leading to her open-ended question, “What would the impact be if the feature (Dwelling) was removed or altered?”. She went on to provide visual evidence (Exhibit 1, Page 323) comparing the definable characteristics of neighbouring hamlets’ “street view” photos to the community of Cashel.

26Ms. Uchiyama concluded that the Subject Property does not have contextual value in defining, maintaining, or supporting the character of Cashel in its present contexts.

FINDINGS

27The Tribunal accepts the oral and written evidence of Mr. Manning that the Dwelling is representative of an example of a tradesman’s dwelling designed in an Ontario Cottage style, namely the rectangle plan, three-bay configuration, brick masonry with projecting plinth, and splayed arches over the door and window openings. The Tribunal agrees with Ms. Uchiyama that the Dwelling does not display an exemplary Ontario Cottage style. However, through a historical lens, the Dwelling displays the design and physical values of the modest Ontario Cottage style where humble tradesmen once resided in the community of Cashel. Therefore, the Tribunal finds the Subject Property meets Criterion 1.

28Relating to Criterion 4, the Tribunal accepts the evidence of Ms. Uchiyama and finds that Criterion 4 is not met. The Tribunal heard no evidence from either witness relating to the magnitude of immigration pertaining to the Subject Property or any significant community connection by the Walker family beyond an everyday contribution.

29Regarding Criterion 7, the Tribunal accepts the evidence of Ms. Uchiyama. The Dwelling is barely visible to the public realm, resulting in the deficiency in defining, maintaining, or supporting the character of Cashel. The removal and demolition of other structures over the decades have seemly altered the character of Cashel, leaving the community as merely a busy intersection. Moreover, Criterion 7 is written in the present tense, and because of the inability to view the Dwelling and evolution of the character of Cashel transforming to what it is today, the Tribunal finds that Criterion 7 is not achieved.

30The Tribunal finds that one criterion, as set out under subsection 29(1) of the Act, has been met.

ORDER

31THE TRIBUNAL ORDERS THAT the appeal against By-law 2024-30 of the City of Markham is allowed. By-law 2024-30 is hereby repealed.

“Kurtis Smith”

Kurtis Smith

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.