Orioncap Management Inc. v. Toronto (City), 2025 CanLII 43235

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 05, 2025

CASE NO(S).: OLT-24-001217

PROCEEDING COMMENCED UNDER subsection 34.1 of the Ontario Heritage Act, R.S.O. 1990, c. O.18. as amended

Applicant and Appellant: Orioncap Management Inc.

Subject: Refusal of an Application to demolish or remove or permit the demolition or removal of a building and/or structure on a designated heritage property

Property Address: 40 Mitchell Avenue and 44 Mitchell Avenue

Municipality/UT: Toronto

OLT Case No.: OLT-24-001217

OLT Lead Case No.: OLT-24-001217

OLT Case Name: Orioncap Management Inc. v. Toronto (City)

Heard: March 10, 2025 by Video Hearing

APPEARANCES:

Parties

Counsel

Orioncap Management Inc.

John Alati, Grace O’Brien

City of Toronto

Matthew Longo Derin Abimbola Isha Patel (articling student)

DECISION DELIVERED BY JENNIFER CAMPBELL AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision arises from a hearing (the “Hearing”) before the Ontario Land Tribunal (the “Tribunal”) regarding an appeal (the “Appeal”) by Orioncap Management Inc. (the “Appellant”) concerning a notice of decision (the “Notice of Decision”) issued by the City of Toronto (the “City”) dated November 18, 2024, refusing the issuance of a demolition permit in respect of the properties located at 40 Mitchell Avenue and 44 Mitchell Avenue, Toronto (together, the “Properties”).

BACKGROUND

2The Properties comprised a pair of single-storey, semi-detached cottages that were among 16 pairs of cottages originally constructed in 1858 by James Lukin Robinson, on three streets southeast of Queen and Niagara streets in the City of Toronto. The buildings are known historically as the Robinson Cottages after the lawyer who commissioned them, as well as the Garrison Common Cottages for their location on the former Military Reserve, lands east of Garrison Creek (where Mitchell Avenue was formerly known as Garrison Street), and represent early evidence of the initial westward expansion of the newly incorporated City.

3The semi-detached houses located at the Properties feature the near-square plans, low hipped roofs and symmetrical placement of the door and window openings inspired by the bungalow that originated in India, which influenced the early-19th century Regency Cottage and, on a more modest scale, the vernacular workers' cottage. The original occupants included tradespeople, as well as workers for the inaugural steam railways that transformed the City in the mid-19th century.

4Over the course of time, several of the original cottages have been lost and only six sets of cottages remain today. In addition to the Properties, the other surviving cottages are located at 71-75 Mitchell Avenue; 735-737 and 753-755 Richmond Street West; 703-705 Richmond Street West; and 719-721 Richmond Street West.

5The Appellant purchased the Properties in 2017, at which time they were neither listed on the City’s Heritage Register (the “Register”) nor designated under the Ontario Heritage Act (the “Act”). In June 2018, the Appellant filed an application for a minor variance to replace the pair of single-storey semi-detached cottages located on the Properties with two 3-storey modern townhouses (the “Proposed Development”).

6Subsequent to the Appellant’s minor variance application, and following a community nomination, the City issued a report dated June 12, 2019 (the “2019 Report”) which recommended that the Properties be listed on the Register and designated as being of cultural heritage value or interest under Part IV, Section 29 of the Act. The 2019 Report additionally recommended that three other sets of the cottages located 71-75 Mitchell Avenue, 735-737 Richmond Street West and 753-755 Richmond Street West also be listed on the Register, although without a corresponding recommendation for designation under the Act. The two pairs of cottages located at 703-705 and 719-721 Richmond Street West had previously been listed on the Register in 2005.

7The City subsequently passed By-Law 820-2021 as amended by By-Law 70-2022 to correct the legal definition of the Properties (collectively, the “Designating By-Law”), designating the Properties as being of cultural heritage value or interest pursuant to Part IV, Section 29 of the Act. The Designating By-Law states that the heritage attributes of the Robinson Cottages located at 40-44 Mitchell Avenue are as follows (collectively, the “Heritage Attributes”):

• The setback, placement and orientation of the pair of semi-detached buildings on the north side of the street between Tecumseth and Niagara streets

• The scale, form and massing of the single-storey rectangular-shaped plans

• The hipped roofs covering the buildings (the central chimney has been removed)

• The materials (the brick on 40 Mitchell has been covered)

• On the principal (south) elevation of each building, the symmetrical organization with the central entrance in the flat-headed surround with the transom flanked by single window openings (the window openings on 44 Mitchell have been changed)

8The Appellant had originally filed an objection to City’s notice of intention to designate the Properties under the Act and the Appeal was referred to a predecessor review board to the Tribunal. However, the Appellant subsequently withdrew its appeal and opted to instead file an application for a demolition permit and appeal the City’s refusal to issue the permit on the basis that the Properties have lost all heritage and cultural value. This is the Appeal which is presently before the Tribunal.

RELEVANT LEGISLATION

9Sections 29, 34(1), 34(4.2) and 34.1(1) of the Act and the applicable historical provisions of the associated Ontario Regulation 9/06 (the “Regulation”) which are relevant to this Appeal, are set forth below.

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.

34 (1) No owner of property designated under section 29 shall do either of the following, unless the owner applies to the council of the municipality in which the property is situate and receives consent in writing to the demolition or removal:

1. Demolish or remove, or permit the demolition or removal of, any of the property’s heritage attributes, as set out in the description of the property’s heritage attributes in the by-law that was required to be registered under clause 29 (12) (b) or subsection 29 (19), as the case may be.

2. Demolish or remove a building or structure on the property or permit the demolition or removal of a building or structure on the property, whether or not the demolition or removal would affect the property’s heritage attributes, as set out in the description of the property’s heritage attributes in the by-law that was required to be registered under clause 29 (12) (b) or subsection 29 (19), as the case may be.

34 (4.2) The council, after consultation with its municipal heritage committee, if one is established, and within the time period determined under subsection (4.3),

(a) shall,

(i) consent to the application,

(ii) consent to the application, subject to such terms and conditions as may be specified by the council, or

(iii) refuse the application;

(b) shall serve notice of its decision on the owner of the property and on the Trust; and

(c) shall publish its decision in a newspaper having general circulation in the municipality.

34.1 (1) If the council of a municipality consents to an application subject to terms and conditions under subclause 34 (4.2) (a) (ii) or refuses an application under subclause 34 (4.2) (a) (iii), the owner of the property that was the subject of the application may appeal the council’s decision to the Tribunal within 30 days of the day the owner received notice of the council’s decision.

Regulation:

1. (1) The criteria set out in subsection (2) are prescribed for the purposes of clause 29 (1) (a) of the Act.

(2) A property may be designated under section 29 of the Act if it meets one or more of the following criteria for determining whether it is of cultural heritage value or interest:

1. The property has design value or physical value because it,

i. is a rare, unique, representative or early example of a style, type, expression, material or construction method,

ii. displays a high degree of craftsmanship or artistic merit, or

iii. demonstrates a high degree of technical or scientific achievement.

2. The property has historical value or associative value because it,

i. has direct associations with a theme, event, belief, person, activity, organization or institution that is significant to a community,

ii. yields, or has the potential to yield, information that contributes to an understanding of a community or culture, or

iii. demonstrates or reflects the work or ideas of an architect, artist, builder, designer or theorist who is significant to a community.

3. The property has contextual value because it,

i. is important in defining, maintaining or supporting the character of an area,

ii. is physically, functionally, visually or historically linked to its surroundings, or

iii. is a landmark.

10Also relevant to the matters at issue in this Hearing are Sections 4.6.1 and 4.6.4 of the Ontario Provincial Planning Statement, 2024 (the “PPS”) which state as follows:

4.6.1 Protected heritage property, which may contain built heritage resources or cultural heritage landscapes, shall be conserved.

4.6.4 Planning authorities are encouraged to develop and implement: a) archaeological management plans for conserving archaeological resources; and b) proactive strategies for conserving significant built heritage resources and cultural heritage landscapes.

11In addition, the following subsections of Section 3.1.6 of the City of Toronto Official Plan (the “OP”) are relevant to this Appeal:

4. Properties on the Heritage Register will be conserved and maintained consistent with the Standards and Guidelines for the Conservation of Historic Places in Canada, as revised from time to time and as adopted by Council.

5. Proposed alterations, development, and/or public works on or adjacent to, a property on the Heritage Register will ensure that the integrity of the heritage property’s cultural heritage value and attributes will be retained, prior to work commencing on the property and to the satisfaction of the City. Where a Heritage Impact Assessment is required in Schedule 3 of the Official Plan, it will describe and assess the potential impacts and mitigation strategies for the proposed alteration, development or public work.

6. The adaptive re-use of properties on the Heritage Register is encouraged for new uses permitted in the applicable Official Plan land use designation, consistent with the Standards and Guidelines for the Conservation of Historic Places in Canada.

7. Prior to undertaking an approved alteration to a property on the Heritage Register, the property will be recorded and documented by the owner, to the satisfaction of the City.

8. Commemoration of lost historical sites will be encouraged whenever a new private development or public work is undertaken in the vicinity of historic sites, such as those where major historical events occurred, important buildings or landscape features have disappeared or where important cultural activities have taken place. Interpretation of existing properties on the Heritage Register will also be encouraged.

9. Heritage Impact Assessment will be required for the proposed demolition of a property on the Heritage Register. Where demolition of a property adjacent to a property on the Heritage Register is proposed, the City may require a study on the implications of the demolition on the structural integrity of the property on the Heritage Register.

10. New construction on, or adjacent to, a property on the Heritage Register will be designed to conserve the cultural heritage values, attributes and character of that property and to mitigate visual and physical impact on it.

11. Where it is supported by the cultural heritage values and attributes of a property on the Heritage Register, the conservation of whole or substantial portions of buildings, structures and landscapes on those properties is desirable and encouraged. The retention of facades alone is discouraged.

Definitions:

Integrity: as it relates to a heritage property or an archaeological site/resource, is a measure of its wholeness and intactness of the cultural heritage values and attributes. Examining the conditions of integrity requires assessing the extent to which the property includes all elements necessary to express its cultural heritage value; is of adequate size to ensure the complete representation of the features and processes that convey the property’s significance; and the extent to which it suffers from adverse affects of development and/or neglect. Integrity should be assessed within a Heritage Impact Assessment.

12Finally, Canada’s Historic Places Standards and Guidelines for the Conservation of Historic Places in Canada (the “S&G”) are incorporated into the OP, including the following definitions set forth therein:

Preservation: the action or process of protecting, maintaining, and/or stabilizing the existing materials, form, and integrity of an historic place, or of an individual component, while protecting its heritage value.

Rehabilitation: the action or process of making possible a continuing or compatible contemporary use of an historic place, or an individual component, while protecting its heritage value.

Restoration: the action or process of accurately revealing, recovering or representing the state of an historic place, or of an individual component, as it appeared at a particular period in its history, while protecting its heritage value.

HERITAGE VALUE AND LOSS OF HERITAGE INTEGRITY

13The Appellant called Christienne Uchiyama to provide expert testimony concerning the diminished cultural and heritage attributes of cottages located on the Properties. Ms. Uchiyama is employed as a Principal/Manager, Heritage Consulting Services by LHC Heritage Planning & Archaeology Inc. (“LHC”) which prepared (i) a report dated June 21, 2024 entitled “Final Report: Heritage Impact Assessment, 40-44 Mitchell Avenue, Toronto, Ontario” (the “HIA”); and (ii) a report dated May 20, 2021 entitled “Cultural Heritage Evaluation Report, 40-44 Mitchell Avenue, Toronto, Ontario” (the “CHER”). She holds a B.A. (Hons) in Classical Archaeology and an M.A. in Heritage Conservation, and is a Professional Member of the Canadian Association of Heritage Professionals. The Appellant’s request that Ms. Uchiyama be qualified as an expert witness with respect to cultural heritage matters was unopposed by the City. The Tribunal was satisfied that Ms. Uchiyama held the necessary qualifications to provide opinion evidence on the cultural and heritage matters under review in this Hearing, and duly qualified Ms. Uchiyama as an expert.

14Ms. Uchiyama summarized the findings of the CHER which found that the Properties met the following criteria of the Regulation: (i) criteria 1i and 3ii with respect to 40 Mitchell Avenue, due to its design/physical value and contextual value; and (ii) criteria 1i, 2i and 3ii with respect to 44 Mitchell Avenue, due to its design/physical value, historical/associative value, and contextual value. Accordingly, the Properties qualified for designation under the Act. However, notwithstanding that they met sufficient criteria of the Regulation for qualification, LHC did not recommend the designation of the Properties under the Act as it noted on page 62 of the CHER that “… alterations and additions have removed most of [the Properties’] architectural details except for the silhouette. This includes, in the case of 44 Mitchell Avenue, the pattern of brick work and the location and composition of windows on the façade which were likely altered when reverted from a commercial storefront back to a more residential form.”

15The HIA was subsequently prepared as a requirement of the City to assess the potential impacts of the Proposed Development on the Properties. The HIA recognizes that the proposed demolition of the cottages will have a direct adverse impact on the cultural and heritage value of the Properties. However, Ms. Uchiyama testified that in her opinion, this adverse impact is acceptable as the various alterations to the buildings over the years have resulted in a loss of heritage integrity such that the demolition will not have an overall adverse impact on the surrounding or adjacent properties or on the streetscape as a whole. The alterations to the cottages that occurred during the nineteenth and twentieth centuries are summarized in the HIA as follows:

• the central chimney was removed on both 40 Mitchell Avenue and 44 Mitchell Avenue before 1991;

• the porch was added to 40 Mitchell Avenue and the roof was extended before 1991;

• the brick façade was covered by a manufactured stone veneer on 40 Mitchell Avenue before 1991;

• windows and doors were replaced by contemporary windows and doors at 40 Mitchell Avenue before 1991;

• the original surveyed lot pattern and dimensions of Lot 49 for 44 Mitchell Avenue was made narrower when the adjacent property at 46 Mitchell Avenue was constructed between 1889 and 1890;

• a canopy over central entranceway was added to 44 Mitchell Avenue before 1991;

• windows and doors were replaced at 44 Mitchell Avenue, including the addition of a third small window with segmental arch, brick voussoirs, and a brick sill situated to the right of the front entranceway; the transom window over the front door was also removed;

• the brick façade was replaced on 44 Mitchell Avenue; and

• the stone windowsills were replaced by brick windowsills on 44 Mitchell Avenue.

16These changes to the architectural details of the semi-detached buildings

have altered each one differently, such that they no longer appear as a single design as originally constructed by Robinson. Further, Ms. Uchiyama testified that infill development and the evolution of the streets over time has divided the six remaining sets of Robinson cottages such that they no longer function as a cohesive grouping.

17Ms. Uchiyama also summarized a report dated July 29, 2022 as revised November 2, 2022, prepared by Tacoma Engineers Inc. entitled “40-44 Mitchell Avenue Condition Assessment” (the “Tacoma Report”) which concluded that the buildings on the Properties are in poor to fair condition. The Tacoma Report identified concerns with roof framing, poor drainage and poor condition of floor finishes. The Tacoma Report concluded that the floor framing and wall framing appear to be in good condition with limited evidence of structurally significant deterioration. The condition of the foundations could not be determined at the time of the review; however, evidence of moisture in the basement of 44 Mitchell Avenue suggests that the foundations have likely sustained some damage due to water ingress. The Tacoma Report concluded that the cottages on the Properties are not good candidates for restoration.

18As a result of the foregoing, Ms. Uchiyama testified that in her professional opinion, the heritage integrity of the cottages located on the Properties has been lost due to the adverse effects of development and deterioration over the last two centuries. The Appellant has proposed to mitigate the loss of the cottages by creating a documentary record of the cottages and possibly some form of commemorative plaque or signage on the Properties, to be determined in collaboration with the City.

19The City then called Erin Smith to provide expert testimony concerning the cultural and heritage attributes of the Properties. Ms. Smith is employed as a Senior Heritage Planner with the City. She holds a Bachelor of Environmental Sciences and a Master of Science in Historic Conservation, and is a Professional Member of the Canadian Association of Heritage Professionals. The City’s request that Ms. Smith be qualified as an expert witness with respect to cultural heritage matters was unopposed by the Appellant. The Tribunal was satisfied that Ms. Smith held the necessary qualifications to provide opinion evidence on the cultural and heritage matters under review in this Hearing, and duly qualified Ms. Smith as an expert.

20Ms. Smith reviewed the Heritage Property Research and Evaluation Report dated June 2019 prepared by the City which found that the Properties met criteria 1i, 2i, 2ii, 3i and 3ii of the Regulation due to their design/physical value, historical/associative value, and contextual value. Ms. Smith testified that in her professional opinion, the cottages on the Properties continue to retain their heritage integrity as all of the alterations that occurred over the past two centuries had already taken place at the time of passing of the Designation By-Law and were duly taken into consideration at such time. As further evidence that these alterations had been considered at the time of designation, Ms. Smith noted that many of the changes are specifically referenced in the Heritage Attributes that are itemized in the Designation By-Law (eg. removal of central chimney, covering of brick, and changing of window openings). She confirmed that the cottages retain all of the same Heritage Attributes today as they did at the time their original designation under the Act, and accordingly there has been no loss of heritage integrity.

21In terms of mitigation, Ms. Smith also testified that in her expert opinion, (i) plaques or other commemorative initiatives should be paired with methods of conservation and should not be considered a replacement for conservation; and (ii) in terms of conservation, demolition is an alternative of last resort.

LEGISLATIVE ANALYSIS

The Ontario Provincial Planning Statement, 2024

22Section 4.6.1 of the PPS provides that “protected heritage properties” shall be conserved, and section 4.6.4 of the PPS encourages the implementation of proactive strategies for conserving “significant built heritage resources”. In its analysis of similar provisions, the HIA considered the Ontario Provincial Policy Statement, 2020 (the “2020 PPS”) which is a predecessor to the PPS, and concluded that while the demolition of the cottages would be inconsistent with the predecessor policies to sections 4.6.1 and 4.6.4 of the PPS, such policies should not be applicable to the Properties as the “significant” heritage integrity of the cottages has been diminished. However, the language of the 2020 PPS differs from that of the PPS, providing at section 2.6.1 that “significant built heritage resources” and “significant cultural heritage landscapes” shall be conserved, while PPS now provides at section 4.6.1 that “protected heritage properties” shall be conserved. The term “protected heritage property” is defined in the PPS as follows:

Protected heritage property: means property designated under Part IV or VI of the Ontario Heritage Act; property included in an area designated as a heritage conservation district under Part V of the Ontario Heritage Act; property subject to a heritage conservation easement or covenant under Part II or IV of the Ontario Heritage Act; property identified by a provincial ministry or a prescribed public body as a property having cultural heritage value or interest under the Standards and Guidelines for the Conservation of Provincial Heritage Properties; property protected under federal heritage legislation; and UNESCO World Heritage Sites.

Accordingly, it is clear based on the updated language of the PPS that the Properties are “protected heritage properties” as they have been designated under Part IV of the Act pursuant to the Designating By-Law. Further, the PPS came into effect on October 20, 2024 and applies to all decisions in respect of the exercise of any authority that affects a planning matter made on or after October 20, 2024. Accordingly, the PPS is the appropriate authority to which the Tribunal must make reference in this Hearing, and it provides that as the cottages constitute “protected heritage property”, they “shall be conserved” in accordance with Section 4.6.1 thereof.

23The HIA also considered the language set forth in Section 4.2.7.1 of the Growth Plan for the Greater Golden Horseshoe, 2020 (the “2020 Growth Plan”) which provided that “Cultural heritage resources will be conserved in order to foster a sense of place and benefit communities, particularly in strategic growth areas”. The HIA concluded that this provision should also be inapplicable to the cottages as there was no evidence that they continued to foster a “sense of place” given the extensive development in the area. However, the 2020 Growth Plan was also replaced by the PPS and is no longer in force (other that in certain limited respects relating to the Ontario Greenbelt). Accordingly, the Tribunal makes no finding in respect of the applicability of the 2020 Growth Plan to the matters under consideration in this Hearing.

City of Toronto Official Plan

24Section 3.1.6 of the OP sets out various criteria for the conservation, altering and adaptive re-use of properties on the Register. The HIA concedes that the demolition of the cottages on the Properties does not comply with subsections 3.1.6.4, 3.1.6.6, 3.1.6.26 or 3.1.6.27 of the OP in this regard, however it argues that such policies do not adequately take into consideration the diminished heritage integrity of the cottages or their current condition. Further, Ms. Uchiyama testified that the Proposed Development seeks to comply with subsections 3.1.6.5, 3.1.6.7 and 3.1.6.17 of the OP by considering the impact to adjacent properties and recommending mitigation strategies such as documented records and a commemorative plaque.

25The applicable sections of the OP make various references to the S&G which have been adopted by many federal agencies, provinces, heritage agencies and municipalities as a guiding document for heritage conservation work. The S&Gs are considered best practice guidance for heritage conservation in Canada and provide that conservation is understood to embrace several key concepts including preservation, rehabilitation, and restoration. The S&G does not contemplate demolition as they are focused on the conservation of heritage properties.

26The following alternatives for the Properties were reviewed by Ms. Uchiyama and encompass the S&G concepts of preservation, rehabilitation and restoration:

(i) Current Use – The HIA concluded that due to the regular maintenance and repair work required to address the deficiencies set forth in the Tacoma Report, the long-term retention of the cottages as housing units in their current condition is “not possible”. However, this conclusion is not fully supported by the Tacoma Report which does not identify any matters that require immediate remedial action, any building code issues or any requirement to demolish the cottages for structural reasons.

(ii) Rehabilitation and Adaptive Reuse – The HIA similarly concluded rehabilitation is not a viable option due to the extensive work required to rehabilitate the cottages and address the deficiencies in the Tacoma Report. The Tacoma Report had concluded that the cottages are not a good candidate for “restoration” - however in summarizing the Tacoma Report at Section 8.0 of the HIA, this conclusion has been improperly expanded to state that the cottages are not a good candidate for “restoration or rehabilitation”. To the contrary, the Tacoma Report offers no such conclusion as to the suitability of the cottages for rehabilitation which is defined in the S&G as “the action or process of making possible a continuing or compatible contemporary use of an historic place, or an individual component, while protecting its heritage value”. None of the deficiencies noted in the Tacoma Report relate to the heritage attributes of the cottages, and the HIA does not contemplate any alternatives that might be consistent with the principles of rehabilitation.

(iii) Demolition – The final option canvassed was that of demolition and construction of the Proposed Development, which the HIA supports as being consistent in terms of shape, form, massing, and materiality with alterations made to certain of the other remaining Robinson cottages as well as those cottages which have previously been demolished and replaced. Although the key principle of minimal intervention promoted by the S&G would not be adhered to should the cottages be demolished, the HIA concluded that it is an appropriate option in these circumstances given that the alternatives of current use and rehabilitation are not feasible. Ms. Smith disagreed and argued that the demolition of the cottages would be entirely inconsistent with the S&G, including applicable standards which require (i) the conservation of heritage value; (ii) the adoption of an approach calling for minimal intervention; and (iii) the requirement to evaluate the existing condition of character defining elements to determine the appropriate intervention required.

27There can be little doubt that the cottages on the Properties have been the subject of unsympathetic renovations over the years and do not stand out as examples of detailed or exquisite historical architecture. In addition, the Tacoma Report clearly states that the cottages are not good candidates for restoration, and these submissions went largely unopposed by the City. However, Ms. Smith testified that the concept of “restoration” is to revert to its original condition, which is distinct from the concept of “rehabilitation” which involves a continuing contemporary use while protecting a property’s heritage value. The Tacoma Report made no reference to the possibility of rehabilitation and did not identify any building code contraventions or any immediate remedial action required. Accordingly, while the Tribunal accepts that “restoration” is not the appropriate primary treatment of the cottages in this case, it does not accept that “preservation” or “rehabilitation” (or some combination of the two) do not remain suitable alternatives.

Election to Appeal Under Section 34.1(1) of Act and Role of the Tribunal

28As noted above, the Appellant had initially appealed the City’s notice of intention to designate the Properties under the Act, but subsequently withdrew its appeal and opted instead to apply for a demolition permit and appeal the City’s refusal to issue the permit under Section 34.1(1) of the Act. The Appellant submitted that this decision was made due to the limited authority of the predecessor review board to make only recommendations and not any final determinations as to the designation of a property under the Act. There was some discussion at the Hearing as to whether this was a valid route of appeal, and the extent to which an appeal under Section 34.1(1) of the Act authorizes the Tribunal to re-consider the validity of the Heritage Attributes.

29Section 34(1) of the Act provides that no owner of a property that has been designated under the Act shall demolish or remove (i) any buildings or structures on the property; or (ii) any of the property’s heritage attributes “as set out in the description of the property’s heritage attributes in the by-law…”, in each case without the written consent of the municipality.

30Section 34.1(1) of the Act allows an applicant for written consent under Section 34(1) to appeal to the Tribunal with respect to any conditional approval or refusal to grant such consent issued by the municipality pursuant to Section 34(4.2) of the Act. This constitutes a right of appeal which has been provided specifically in connection with a proposed demolition or removal, as recognized by the Ontario Court of Appeal in The Corporation of the Town of Oakville v. Clublink Corporation ULC et. al., 2019 ONCA 826 at para. 4:

“… applications under s. 34, was a deliberate legislative decision. The introduction of this right of appeal was intended to act as a counterbalance to the municipality's (then newly conferred) right to preclude an owner from demolishing a building or structure, in a manner that would wholly remove the cultural heritage attributes associated with the property. Far from being irrelevant to the issue presented by this case, the difference in appeal routes under ss. 33 and 34 is an important part of the scheme of the OHA. It is instructive of the types of applications the legislature anticipated would be captured by each provision.”

31Accordingly, while the Appellant may have also had other alternatives to appeal to the Tribunal (or its predecessors) over the course of the past several years, the route by which the Appellant brought forth the Appeal under Section 34.1(1) of the Act in the context of the Proposed Development and corresponding demolition of the cottages is a valid one.

32However, the Ontario Court of Appeal in Clublink also stated as follows at para. 48:

“To this end, the OHA counterbalances the broad powers provided to municipalities to designate a property as being of cultural heritage value or interest with procedural protections for property owners when seeking to make changes to a designated property: St. Peter's, at p. 626 S.C.R.; Toronto College, at p. 532 O.R.”

33Accordingly, while the right of Appeal exists under Section 34.1(1) of the Act in respect of a proposed demolition or removal of structures or heritage attributes on a designated property, it is not an appeal of the original designation itself. To the contrary, (i) the Court of Appeal in Clublink recognized that the appeal route under Section 34.1(1) relates to changes to an already designated property, and (ii) Section 34.1(1) of the Act specifically references any demolition or removal of any heritage attributes “as set out in the description of the property’s heritage attributes in the by-law…”. These references expressly recognize that the heritage attributes in question have already been determined and codified in the designating by-law. In addition, a right of appeal for the initial notice of intent to designate a property separately exists under Section 29(11) of the Act.

34Thus, an appeal under Section 34.1(1) of the Act is not an appeal of the original designation of a property as having cultural heritage value or interest. However, in considering a proposed demolition, the Tribunal must consider the heritage attributes in question and the extent to which they will be impacted by the proposed demolition or removal, which will necessarily entail some degree of overlap with considerations relating to the original designation. In ADMNS Kelvingrove Investment Corp. v. Toronto (City), 65 OMBR 57, the Ontario Municipal Board (the “OMB”) considered a proposed demolition and re-development of a property which had previously been designated under the Act, and in respect of which the experts disagreed upon whether the existing structure met the applicable criteria of the Regulation. The OMB ultimately found that the designation was supportable, and noted that whether it had considered the designation de novo or applied a standard of reasonableness to the pre-existing determination of heritage value, the result would likely have been the same. On appeal to the Ontario Superior Court of Justice, the decision of the OMB was upheld.

35The facts of Kelvingrove are distinguishable from those in this matter as the experts for both the Appellant and the City in this Appeal each agree that sufficient criteria of the Regulation have been met for designation of the Properties under the Act. Their disagreement is instead based upon whether the Properties should be so designated despite their qualification. Accordingly, the Tribunal has even less of a basis on which to question the validity of the original designation of the Heritage Attributes in this Appeal than in Kelvingrove. In this regard, the Tribunal accepts the opinions of Ms. Uchiyama and Ms. Smith that the Properties meet sufficient criteria of the Regulation such that they duly qualify for designation under the Act, and accordingly, the Tribunal is of the view that the designation of the Properties under the Act is supportable, whether or not a de novo or reasonableness standard is applied.

36Further, the Designating By-Law sets forth the Heritage Attributes in a manner which clearly evidences that the alterations and modifications to such properties that have taken place over the years were duly considered and taken into account at the time of designation, and there has been no material change to the Heritage Attributes since the passing of the Designating By-Law. Accordingly, the Tribunal must now turn to considering the proposed demolition of the cottages which bear the Heritage Attributes inclusive of all modifications, in the context of the PPS, the OP and the S&G as incorporated therein.

FINDINGS

37The Appellant argued that despite their designation under the Act, demolition of the Properties is an appropriate course of action in this case due to their diminished heritage integrity. In this regard, Section 4.6.1 of the OP provides that as protected heritage properties, the Properties shall be “conserved”. Similarly, Section 3.1.6.4 of the OP provides that as properties on the Register, the Properties will be “conserved and maintained” consistent with the S&G.

38The S&G, in turn, contemplates three concepts of preservation, rehabilitation and restoration as varying means of conservation. On the basis of the Tacoma Report, the Tribunal accepts that restoration is not the appropriate primary treatment of the cottages in this instance. However, the Appellant does not appear to have given sufficient consideration to rehabilitation, and the HIA does not contemplate any alterations to the cottages which might evidence any such consideration. Finally, although the cottages appear in general need of repair, insufficient evidence was presented to the Tribunal to establish that the third alternative of preservation / current use does not also remain a viable option.

39It is worthy of note in this case that not all properties which are designated as being of heritage value or interest under the Act will necessarily be exquisite or beautiful, and their visual attractiveness may not always serve as an indicator of their cultural attributes. As stated in subsection 2.2.1 of the OP, “Downtown is where our history is richest, but it is also where we continue to rebuild to accommodate a growing economy and a changing society. Given that this is one place in Toronto where ‘change is constant’, we must ensure that our built heritage is respected, nurtured and celebrated.” The designation of properties under the Act is a means by which this rich history is intended to be protected.

40Accordingly, in keeping with the principle of the S&G which requires that heritage value be conserved by adopting an approach calling for minimal intervention, the alternatives of rehabilitation and preservation must be fully explored before the demolition of the cottages on the Properties could be justified. Demolition is a means of last resort as it would result in a complete and irreversible loss of the Heritage Attributes, and in the opinion of the Tribunal, it is not appropriate in these circumstances.

ORDER

(i) The Tribunal orders that the Appeal be dismissed.

“Jennifer Campbell”

JENNIFER CAMPBELL

MEMBER

Ontario Land Tribunal

Website: 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.