Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 04, 2025
CASE NO(S).: OLT-24-001164
PROCEEDING COMMENCED UNDER subsection 32(7) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended
Applicant and Appellant: Tony and Anita Cassone Subject: Refusal of Application Description: To permit the repeal of heritage designation Reference Number: D09-01-COLE501 Property Address: 501 Cole Avenue Municipality/UT: Ottawa OLT Case No.: OLT-24-001164 OLT Lead Case No.: OLT-24-001164 OLT Case Name: Cassone v. Ottawa (City)
Heard: June 12 and 13, 2025 by video hearing
APPEARANCES:
Parties Tony and Anita Cassone (“Applicant”/“Appellant”)
Counsel M. Polowin
Parties City of Ottawa (“City”)
Counsel T. Marc
DECISION DELIVERED BY S. TOUSAW AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
1This case arises from s. 32 of the Ontario Heritage Act (“OHA”) which enables the owner of a heritage designated property to apply to the municipality to repeal all or part of a designation by-law. If the application is refused, the owner may appeal to the Tribunal for a hearing. The Tribunal may dismiss the appeal or allow the appeal in whole or in part.
2The Applicant owns a dwelling at 501 Cole Avenue, Ottawa (“property”), that is designated as having cultural heritage value or interest (“CHVI”) under the OHA through By-law No. 2022-348, as amended by By-law No. 2024-334 in accordance with an Order of this Tribunal, differently constituted, following a previous hearing (“By-law”).
3The Applicant applied to the City to have the By-law repealed to enable the demolition of the dwelling and its replacement with two new dwellings. The City refused the application to repeal the By-law and the Applicant appealed to the Tribunal, resulting in this Hearing.
4The Applicant argues that recent changes to O. Reg. 9/06 (“Regulation”) under the OHA have the effect of negating and/or not protecting this designation By-law, and thus, it should be repealed. The City counters that the By-law remains in force as protected by the Regulation, and should not be repealed such that its valid heritage protection continues.
5As explained below, the Tribunal finds that the By-law continues in force per the Regulation, but that a repeal is warranted given this property’s limited heritage contribution and the more stringent designation standards that are now contained in the Regulation.
CONTEXTUAL FACTS
6On October 5, 2022, City Council passed By-law No. 2022-348, designating the property under Part IV of the OHA as a property of CHVI. The owner appealed that By-law to the Tribunal and a Hearing was held mid-2023.
7In early 2024, the Tribunal issued its Decision, allowing the designation to remain based on only one criterion for CHVI in the Regulation. The Tribunal found the property’s CHVI was reflected in its contextual value, but the property was not found to display design/physical value or historical/associative value. The Tribunal Ordered the City to amend the By-law in accordance with the Decision.
8On July 10, 2024, the City passed the amending By-law No. 2024-334.
9Effective January 1, 2023, s. 2 of the Regulation was amended to require that “two or more of the criteria” (emphasis added) for determining CHVI be met to enable a heritage designation under s. 29 of the OHA (Exhibit 1, p. 202). This new Regulation is triggered by a Notice of Intention to Designate (“NOID”) issued on or after January 1, 2023. A property may be designated based on the former “one or more of the criteria” (emphasis added) for CHVI where the NOID was issued before January 1, 2023.
PARTY POSITIONS
10The Applicant argues that the protection afforded by s. 2.(2) of the Regulation applies only to matters involving the issuance of a NOID before January 1, 2023. As no NOID was issued for the amending By-law intended to implement the Tribunal’s Order, the continuation of the minimum “one” criterion rule does not apply to this case. There is no dispute that the property satisfies only one criterion for CHVI, as determined by the previous Tribunal Order and confirmed by the evidence in this Hearing. The designation By-law does not satisfy the current, applicable Regulation regarding a NOID, and should be repealed. In addition, given the failure of this property to satisfy “two or more of the criteria” for CHVI, as now required by the Regulation, this By-law should be repealed.
11The City responds that the amending By-law clearly states that it implements the Tribunal’s Order, which Order upheld, in part, the 2022 By-law for which a NOID was issued. The By-law is therefore protected from the new “two or more” criteria in the Regulation. On an application for repeal, the test should rely on the Regulation’s protection that only one criterion “continues to apply” to this property. The repeal should be denied because the reason for designation, as determined by the Tribunal Decision, continues to apply today.
ISSUES AND FINDINGS
12On the submissions of the Parties, including the contextual and opinion evidence of the heritage witnesses, the Tribunal finds that two issues arise in this case:
Does the amending By-law activate the new Regulation requiring that “two or more” CHVI criteria be met for designation of this property?
Does this property warrant continued heritage designation under the OHA?
13The Tribunal observes that the first question looks back, while the second question looks forward. In other words, is the existing By-law properly in effect, and should it continue in the future?
The By-law
14First, the Tribunal finds for the City that the By-law, as amended in accordance with the Tribunal’s Order, remains in force as a By-law protected by s. 2.(2) of the Regulation, which need only satisfy one criterion for determining CHVI. In finding that the By-law be approved in part, the Tribunal could have either amended the By-law directly within the Order per s. 29(15)(b)(ii) of the OHA (“option (ii)”), or directed the municipality to amend the By-law per s. 29(15)(b)(iv) of the OHA (“option (iv)”). Clearly, the Tribunal chose option (iv) to direct the municipality to amend the By-law in accordance with its Decision.
15Had the previous Decision chosen option (ii), the Tribunal herein considers that there would be no question that the original By-law was properly altered and that no NOID was required. The Tribunal finds that the same applies via the Tribunal’s direction to the municipality: the original By-law was amended and came into effect without the need for a further NOID.
16The relevant NOID for the purpose of s. 2.(2) of the Regulation is the original (and only) NOID issued in 2022. The Tribunal does not accept the Appellant’s argument that a NOID should have been issued for the amending By-law, and thereby the two criteria standard now applies to this property. The amending By-law was simply achieving what the Tribunal could have achieved by direct Order in its Decision. As noted by the City, if a NOID and its associated appeal rights were invoked by a Tribunal Order, a circular and continuous process of repeat appeals could occur. The Tribunal also accepts the City’s argument that, because the Appellant neither sought a Request for Review to the Tribunal Chair nor pursued a challenge in court, the amending By-law remains in force and effect.
17The Tribunal also finds that the amending By-law is captured by s. 30.1(2)1 of the OHA where “subsections 29(1) to (14) do not apply to an amending by-law if the only purpose” is to “correct the statement explaining the property’s cultural heritage value or interest …” Such “correction” was determined necessary by the Tribunal on the original appeal in finding that only one of the CHVI criteria was warranted. This OHA section exempts an eligible amending by-law from the full public process, including issuance of a NOID and appeal rights.
18The Tribunal finds that the amended form of the By-law, as directed by the previous Tribunal Decision based on one criterion, remains in effect today. To find otherwise would constitute a retroactive effect of the new Regulation that is not evident in the clear wording of s. 2.(2).
The Repeal
19Second, the Tribunal finds that, on the opinion evidence advanced for this case, the merits of designation are insufficient to warrant retaining the heritage designation. The Applicant’s request for repeal is a new application. The revised Regulation is in force and applicable in considering this request. The Tribunal agrees with the City that the Regulation protects existing heritage designations that are premised on one criterion only, and that de-designations should not be “automatic.” However, the Tribunal must consider the new Regulation when evaluating the merits of this request for repeal.
20The Tribunal finds that the opinion evidence of the heritage witnesses are reasonably aligned. City staff had recommended against designating this property when the original By-law was considered, based on it meeting only one criterion. Their general practice is to recommend designation when two or more criteria for CHVI are met. (The Tribunal observes that, given the recently amended Regulation, the City staff may have been ahead of their time.) Staff explained in this Hearing that their position is now to support the By-law, as amended in accordance with the Tribunal’s Order, out of respect for City Council’s decision and the Tribunal’s findings that the property warranted designation.
21The opinion of the heritage witness retained by the Applicant accords with the City staff’s original recommendation. This dwelling is one of many in the surrounding Highland Park neighbourhood that reflects the area’s early suburban character. Numerous similar dwellings are not designated under the OHA, and several have been removed from the City’s Heritage Registry. This property’s house does not display design value and only relates to context through its physical existence, setback, and mature trees. Many original dwellings throughout the Highland Park neighbourhood have been replaced by new infill dwellings of various types.
22The Tribunal finds that the evidence supports a repeal of the designation, and while not automatic, does align with the amended Regulation that more than one criterion must be evident and satisfied to warrant designation. While this dwelling and its large lot reflect an earlier suburban layout, the Tribunal accepts the City staff’s original conclusions regarding CHVI, which were not materially altered for this hearing: “the property’s designation … would not contribute meaningfully to the City’s designation program nor address any gaps in regard to associative or community histories not yet represented through heritage designation” (Exhibit 1, p. 28). This limited contribution to heritage, while also failing the Regulation’s requirement to satisfy “two or more” criteria, warrants the repeal application.
ORDER
23The Tribunal Orders, pursuant to s. 32(12)1. of the Ontario Heritage Act, that the appeal is allowed and By-law No. 2022-348, as amended by By-law No. 2024-334, is repealed.
“S. Tousaw”
S. tousaw
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.