Hussain v. Ottawa (City), 2025 CanLII 24811

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 18, 2025

CASE NO(S).: OLT-24-001141

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

Appellant: Rozina Hussain on behalf of Ghulam Hussain

Subject: Objection to designation By-law No. 2024-410

Property Address: 149 Rideau Street

Municipality/Upper Tier: Ottawa

OLT Case No.: OLT-24-001141

OLT Lead Case No.: OLT-24-001141

OLT Case Name: Hussain v. Ottawa (City)

Heard: March 7, 2025 by Telephone Conference Call Hearing

Parties

Counsel

City of Ottawa (“City”)

Garett Schromm; Rui Zhang (student-at-law)

Ghulam Hussain (“Appellant”)

Self-represented

1This decision arises from a motion heard on March 7, 2025, by Telephone Conference Call (“TCC”). The motion was brought by the City to dismiss this appeal.

2The City in its notice of motion sought:

“An order dismissing the appeal of Designation By-law No. 2024-410 pursuant to subsections 29 (11) and (16) of the Ontario Heritage Act, R.S.O. 1990, c. O.18 as amended…””

3The appeal by Mr. Hussain was initiated on November 10, 2024. Designation By-law No. 2024-410 (“By-law”) under the Ontario Heritage Act (“OHA”) governed his property located at 149 Rideau Street in the City (“Appellant’s Property”), which he indicated at the TCC he had purchased much earlier in 1990.

4The materials delivered to the Tribunal in connection with the Motion were:

(a) Notice of Motion of the City dated February 14, 2025, comprising two pages;

(b) Factum of the City, comprising nine pages;

(d) City’s Book of Authorities, comprising 22 pages.

5Notably, despite several communications between the Tribunal and Mr. Hussain, Mr. Hussain did not file any responding materials related to the Motion. Nor did he at any time explain the specific basis or grounds for his appeal of the By-law under the OHA.

6The Tribunal notes that at the outset of the TCC hearing, Mr. Hussain objected to the fact that the hearing was convened as a telephone conference call rather than an in-person hearing or video hearing. The Tribunal noted that this event could have been convened as a video hearing but that Mr. Hussain had previously complained of unspecified ‘technology issues’ and objected to a video hearing. Mr. Hussain had no real response to this other than to say that he wanted to ‘be heard’ in person. He did not display any outward signs of being unable to understand or otherwise participate in the TCC hearing.

7The Tribunal clearly has the power to control its own proceedings and to convene any hearing, in its reasonable discretion, by videoconference, teleconference or in person. In these circumstances, given the lack of any prior submissions by this Appellant and his failure to respond in writing to the City’s Motion materials, the Tribunal exercised its discretion to hold this hearing by teleconference having determined that this would offer the best opportunity for a fair, just, expeditious and cost-effective resolution of the merits of the proceedings in accordance with Rule 1.3 of the Tribunal’s Rules of Practice and Procedure.

8As noted, the Tribunal did not discern any constraints on the part of Mr. Hussain in presenting his arguments during the TCC – he was an articulate and passionate advocate on his own behalf and did not appear to have any difficulties in understanding the City’s submissions nor in responding to them at the TCC hearing.

ISSUES ANALYSIS

9Under the OHA, an appellant is required to submit a notice of appeal that sets out both the objection to the by-law and the reasons in support of the objection. However, Mr. Hussain did neither. In a letter delivered on his behalf, it was simply stated:

“Please consider …[this letter of July 23, 2024]..to be my Notice of Objection…to the designation of 149 Rideau Street under Part IV of the Heritage Act…I fully object to any such designation of this building…”

10Despite numerous notifications from the City and communications concerning the identified heritage aspects of the Appellant’s Property and the eventual enactment of the By-law, the Appellant never further elaborated upon the specific basis for his OHA appeal. He also never did so after receiving the materials filed on the Motion by the City. Finally, as noted above, he delivered no written response to the Motion.

11At the TCC hearing, at the invitation of the Tribunal to do so, Mr. Hussain did not explain any basis under the OHA or otherwise for his appeal and did not challenge the process that led up to the By-law or the By-law itself. On the other hand, he spoke at length about his strong personal objection to the designation of his property. He testified that he specifically purchased the property because it had not been designated for heritage purposes, unlike other properties in the immediate area that he had also considered. Thus, he was surprised and disappointed when years later this changed as a result of the By-law. Had he known that this would occur, his feeling was that he would never have purchased his property. He felt strongly that the By-law has now dramatically reduced the value of his property.

12Unfortunately, the testimony of Mr. Hussain, however heartfelt, is not a basis for overturning the By-law on this appeal.

13The Tribunal must agree with the City that subsection 29(16)(a)(i) of the OHA allows the Tribunal to dismiss all or part of the appeal without a hearing if the reasons set out in the notice of appeal do not disclose any apparent ground. In this case, the Tribunal is forced to agree that the Appellant failed to disclose any apparent ground upon which the Tribunal could allow the appeal.

14The relevant provisions of the OHA are as follows (below emphasis added):

Designation by municipal by-law

29 (1) The council of a municipality may, by by-law, designate a property within the municipality to be of cultural heritage value or interest if,

(a) where criteria for determining whether property is of cultural heritage value or interest have been prescribed, the property meets the prescribed criteria; and

(b) the designation is made in accordance with the process set out in this section. 2005, c. 6, s. 17 (1); 2019, c. 9, Sched. 11, s. 7 (1); 2022, c. 21, Sched. 6, s. 4 (1).

Notice required

(1.1) Subject to subsections (1.2) and (2), if the council of a municipality intends to designate a property within the municipality to be of cultural heritage value or interest, it shall cause notice of intention to designate the property to be given by the clerk of the municipality in accordance with subsection (3). 2005, c. 6, s. 17 (1); 2019, c. 9, Sched. 11, s. 7 (2)….

Notice of intention

(3) Notice of intention to designate under subsection (1) shall be,

(a) served on the owner of the property and on the Trust; and

(b) published in a newspaper having general circulation in the municipality. R.S.O. 1990, c. O.18, s. 29 (3); 2005. c. 6. s. 1.

Contents of notice

(4) Notice of intention to designate property that is served on the owner of property and on the Trust under clause (3) (a) shall contain,

(a) an adequate description of the property so that it may be readily ascertained;

(b) a statement explaining the cultural heritage value or interest of the property and a description of the heritage attributes of the property; and

(c) a statement that notice of objection to the notice of intention to designate the property may be served on the clerk within 30 days after the date of publication of the notice of intention in a newspaper of general circulation in the municipality under clause (3) (b). 2005, c. 6, s. 17 (2); 2019, c. 9, Sched. 11, s. 7 (4)….

Objection

(5) A person who objects to a proposed designation shall, within thirty days after the date of publication of the notice of intention, serve on the clerk of the municipality a notice of objection setting out the reason for the objection and all relevant facts. R.S.O. 1990, c. O.18, s. 29 (5); 1996, c. 4, s. 55 (2); 2009, c. 33, Sched. 11, s. 6 (4).

Consideration of objection by council

(6) If a notice of objection has been served under subsection (5), the council of the municipality shall consider the objection and make a decision whether or not to withdraw the notice of intention to designate the property within 90 days after the end of the 30-day period under subsection (5). 2019, c. 9, Sched. 11, s. 7 (6).

If no notice of objection or no withdrawal

(8) If no notice of objection is served within the 30-day period under subsection (5) or a notice of objection is served within that period but the council decides not to withdraw the notice of intention to designate the property, the council may pass a by-law designating the property, provided the following requirements are satisfied:

The by-law must be passed within 120 days after the date of publication of the notice of intention under clause (3) (b) or, if a prescribed circumstance exists, within such other period of time as may be prescribed for the circumstance.
The by-law must include a statement explaining the cultural heritage value or interest of the property and a description of the heritage attributes of the property and must comply with such requirements in relation to the statement and the description as may be prescribed and with such other requirements as may be prescribed.
The council must cause the following to be served on the owner of the property, on any person who objected under subsection (5) and on the Trust:

i. A copy of the by-law.

ii. A notice that any person who objects to the by-law may appeal to the Tribunal by giving the Tribunal and the clerk of the municipality, within 30 days after the date of publication under paragraph 4, a notice of appeal setting out the objection to the by-law and the reasons in support of the objection, accompanied by the fee charged by the Tribunal.

The council must publish notice of the by-law in a newspaper having general circulation in the municipality, which must provide that any person who objects to the by-law may appeal to the Tribunal by giving the Tribunal and the clerk of the municipality, within 30 days after the date of publication under this paragraph, a notice of appeal setting out the objection to the by-law and the reasons in support of the objection, accompanied by the fee charged by the Tribunal. 2019, c. 9, Sched. 11, s. 7 (6); 2021, c. 4, Sched. 6, s. 74 (2).

15The evidence filed by the City on the Motion demonstrated that it properly followed all required elements of section 29 of the OHA as set out in paragraph [14] above. As noted, the Appellant did not challenge this either in writing or verbally at the TCC.

16Section 29 further sets out the appeal provisions (below emphasis added):

“Tribunal” means the Ontario Land Tribunal; (“Tribunal”) [Section 1(1) definition]

Appeal to Tribunal

(11) Any person who objects to the by-law may appeal to the Tribunal by giving the Tribunal and the clerk of the municipality, within 30 days after the date of publication under paragraph 4 of subsection (8), a notice of appeal setting out the objection to the by-law and the reasons in support of the objection, accompanied by the fee charged by the Tribunal. 2019, c. 9, Sched. 11, s. 7 (6); 2021, c. 4, Sched. 6, s. 74 (2).

If notice of appeal

(13) If a notice of appeal is given within the time period specified in subsection (11), the Tribunal shall hold a hearing and, before holding the hearing, shall give notice of the hearing to such persons or bodies and in such manner as the Tribunal may determine. 2019, c. 9, Sched. 11, s. 7 (6).

Powers of Tribunal

(15) After holding the hearing, the Tribunal shall,

(a) dismiss the appeal; or

(b) allow the appeal in whole or in part and,

(i) repeal the by-law,

(ii) amend the by-law in such manner as the Tribunal may determine,

(iii) direct the council of the municipality to repeal the by-law, or

(iv) direct the council of the municipality to amend the by-law in accordance with the Tribunal’s order. 2019, c. 9, Sched. 11, s. 7 (6).

(15.1) Repealed: 2019, c. 9, Sched. 11, s. 7 (6).

Dismissal without hearing of appeal

(16) Despite the Statutory Powers Procedure Act and subsections (13) and (15), the Tribunal may, on its own motion or on the motion of any party, dismiss all or part of the appeal without holding a hearing on the appeal if,

(a) the Tribunal is of the opinion that,

(i) the reasons set out in the notice of appeal do not disclose any apparent ground upon which the Tribunal could allow all or part of the appeal, or

(ii) the appeal is not made in good faith, is frivolous or vexatious, or is made only for the purpose of delay;

(b) the appellant has not provided written reasons in support of the objection to the by-law;

(d) the appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal. 2019, c. 9, Sched. 11, s. 7 (6); 2021, c. 4, Sched. 6, s. 74 (2).

Representations

(17) Before dismissing all or part of an appeal on any of the grounds mentioned in subsection (16), the Tribunal shall,

(a) notify the appellant of the proposed dismissal; and

(b) give the appellant an opportunity to make representations with respect to the proposed dismissal. 2019, c. 9, Sched. 11, s. 7 (6).

17The City argued in its Motion materials and at the TCC that Mr. Hussain has simply failed either in his notice of appeal or in any responding submissions to disclose “any apparent ground upon which the Tribunal could allow all or part of the appeal”. The Tribunal must agree and after he was requested at several points during the TCC to squarely address this requirement, Mr. Hussain simply failed to do so. Instead, he complained that in his view general unfairness has resulted from the heritage designation of his property and from what he described as the negative impact on its value and what he perceived to be the limitation of the further development potential. He also maintained that the whole scheme of the OHA was an example of ‘governmental overreach’ that diminishes the economic prospects of property owners.

18The arguments made by Mr. Hussain do not constitute proper, apparent grounds or any reasons for the appeal within the meaning of subsection 29 (11) or 29 (16) of the OHA. Moreover, after being given opportunities before and during the TCC hearing to more fully address these requirements, he filed no written materials or submissions and offered no oral evidence to satisfy the requisite elements.

ORDER

19THE TRIBUNAL ORDERS THAT this appeal is dismissed.

“William R. Middleton”

WILLIAM R. MIDDLETON

VICE-CHAIR

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.