Nantuck Investments Inc. v. Oshawa (City), 2026 CanLII 30961

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 02, 2026

CASE NO(S).: OLT-23-000755

PROCEEDING COMMENCED UNDER subsection 34.1(1) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended

Applicant/Appellant: Nantuck Investments Inc.

Subject: Refusal of application to demolish

Reference Number: 12-04-0319

Property Address: 195 Simcoe Street North (Robert McLaughlin House)

Municipality/Upper Tier: City of Oshawa/Durham

OLT Case No.: OLT-23-000755

OLT Lead Case No.: OLT-23-000755

OLT Case Name: Nantuck Investments Inc. v. Oshawa (City)

Heard: September 15, 2025 - October 3, 2025; October 8, 2025 – Closing Submissions

APPEARANCES:

Parties

Nantuck Investments Inc. ("Applicant")

City of Oshawa ("City")

Counsel

Mark H. Vernon

Melanie Mayhew-Hammond

DECISION DELIVERED BY N. EISAZADEH AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1Through a set of unfortunate events, the Applicant has found itself in the ownership of an historically significant property, that – through no fault of its own – was damaged by fire, though remained in a condition which continued to qualify it for designation under Part IV of the Ontario Heritage Act¹ ("OHA"). Pursuant to s. 34 of the OHA, the Applicant now seeks a permit for the complete demolition of the structure at 195 Simcoe Street North, in the City of Oshawa ("Subject Property" and referred to within the body of this Decision as the "Robert McLaughlin House").

2The Applicant’s core position is that the Robert McLaughlin House has suffered irreparable damage as a result of the fire, fire suppression, and related activities, and thereby its current physical and structural condition renders it both practically and financially infeasible to implement a retention and preservation plan for the structure. The Applicant argues that being required to bear the immense financial burden, at its sole expense, of restoring the Robert McLaughlin House to its pre-fire condition impugns its private property rights which must be considered within the analysis required under a s. 34 demolition permit application.

3The City argues that the Applicant’s proposed analysis is a misapprehension of the legislative and analytical framework required, and that its Appeal is based on reasons that are outside the scope of the Tribunal’s jurisdiction under an OHA application. The City posits that the present appeal ("Appeal") amounts to an elimination of the remaining and majorly intact heritage attributes of the Robert McLaughlin House, in their entirety, with commemoration through a mimicked rebuild without proper investigation of appropriate conservation measures. The City emphasizes that the Applicant has failed to provide an appropriate heritage impact assessment ("HIA") or strategic conservation plan, nor any evidence from a qualified heritage expert to support its request that a designated heritage structure be demolished under the OHA.

4For the reasons set out in this Decision, the Tribunal dismisses the Appeal.

SCOPE OF EVIDENCE

5Over the course of the three-week Hearing, a significant amount of evidence was led by both Parties on issues that are, ultimately, found not to be relevant to the required analysis under a s. 34 OHA application.

6Briefly, the Applicant called evidence in the following areas, presented by the following five (5) witnesses:

I. Shanta Chhangur: a lay witness, being one of the two principals of the Applicant corporation. Ms. Chhangur spoke to the history of the property including past applications and uses, the circumstances surrounding the fire, professionals engaged following the fire, actions taken to secure and maintain the structure following the fire, the history related to property standards orders, enforcement orders, unsafe building orders, and orders to comply respecting the property, and the general dealings with the City throughout its ownership of the property.

II. Matthew Kruczkowski: a structural engineer qualified to provide opinion evidence in the area of structural engineering, with a focus in evaluating, investigating and rehabilitating heritage buildings and structures. Mr. Kruczkowski spoke to issues of the structural integrity and condition of the property, practicability of retention and salvage, and the feasibility of restoration.

III. Don Finlayson: a general contractor and participant expert, qualified to provide opinion evidence in the area of construction. Mr. Finlayson spoke to issues related to property damage, practicability of retention and salvage, and the feasibility of restoration.

IV. Chadd Hillis: a heritage restoration specialist, qualified to provide opinion evidence in the area of construction project costs. Mr. Hillis’ evidence spoke solely to the issue of the costs of full demolition compared to façade retention.

V. Gagan Hajatri: an architectural designer and participant expert, qualified to provide opinion evidence in the field of architectural design.² Mr. Hajatri’s evidence spoke to whether the heritage attributes could be recognized by means other than preservation, and to the issue concerning the balancing of public interests in heritage conservation with private property rights of owners, specifically related to the costs of restoration.

7In response, the City called evidence in the following areas, given by the following seven (7) witnesses:

I. Connor Leherbauer: principal planner for the City and fact witness qualified to provide opinion evidence in the area of land use planning. Mr. Leherbauer’s evidence related predominantly to land use planning and the application’s consistency and conformity with provincial and local planning documents. Mr. Leherbauer also provided evidence on the history and background of the file throughout the municipal process and behind the present Appeal before this Tribunal.

II. Will Teron: a structural engineer qualified to provide opinion evidence in the area of structural engineering, with a focus in heritage buildings and restoration. Mr. Teron’s evidence spoke to the structural integrity and condition of the property, the practicability of retention, and the preservation of the property from a heritage perspective.

III. Vincent Santamaura: an architect qualified to provide opinion evidence in the area of heritage matters and architecture. Mr. Santamaura’s evidence spoke to whether the property continued to retain its cultural heritage attributes following the fire and related damage, and whether a full demolition is supportable under the relevant heritage industry standards, practices, and guidelines.

IV. Tom Plue: a restoration consultant qualified to provide opinion evidence in the area of historical restoration. Mr. Plue’s evidence related to his engagement by the City to provide a feasibility assessment of the repair and reconstruction of the property, including an approximate costing of the repair work required in response to the Applicant’s evidence.

V. Adam Dunn: Manager of Building Inspection Services and Deputy Chief Building Official for the City. Mr. Dunn’s evidence was tendered to reply to the evidence raised by the Applicant, including the historical use of the property and issuance of past unsafe building orders and orders to comply under the Building Code Act.

VI. Brent Varty: Manager of Municipal Law Enforcement Services for the City. Mr. Varty’s evidence was tendered to reply to the evidence raised by the Applicant including the historical use of the property, the standards and practices of the City respecting the issuance and discharge of property standards orders, the issuance of past property standards orders on the property, and the charges and proceedings carried out in relation the property’s past violations of zoning by-laws and enforcement by-laws.

VII. Macartan Phelan: Municipal Law Enforcement Officer for the City. Mr. Phelan’s evidence was tendered to reply to the evidence raised by the Applicant including the investigation of the property by the City in relation to past property standards by-law violations and the outcome of those investigations including related charges and proceedings.

WHAT THIS CASE IS NOT ABOUT

8As is evident from the overview on the scope of evidence tendered, a substantial amount of evidence was called, and time spent, on a wide range of matters going well beyond the bounds of a typical heritage demolition permit application. A key reason for this is the Parties’ opposing views on a legal threshold issue regarding the applicable legislative and analytical framework on the present Appeal. The Tribunal, having allowed the Hearing to have been carried out to its fullest, and having since had the opportunity to consider the full extent of all of the evidence and legal submissions that the Parties deemed relevant and necessary, is now in a position to scope this Decision to the appropriate elements. Briefly, it shall first set out what this case is not about.

9This case is not about an alleged narrative suggesting the City has been "targeting" the Applicant; nor is it about the credibility of the Principals of the Applicant corporation nor the interim measures it did, did not, or ought to have taken to better secure or preserve the property. To this end, evidence related to the history of the uses of the property, past Planning Act applications, prior unsafe building orders or orders to comply under the Building Code Act, past investigation of the property by the City in relation to alleged property standards by-law violations or the outcome of those investigations including related charges or proceedings, are not relevant to the ultimate issues which this Tribunal must decide. Equally, evidence regarding whether there was a property insurance claims issue post-fire, the financial state of the Applicant, alleged delays in permitting site visits or other procedural steps, and the costs associated with the retention, preservation and restoration of the property, are also not relevant. This case is also not about whether the City ought to have exercised its rights under the OHA to expropriate the property, nor its power under s. 15.4 of the Building Code Act to take demolition or restoration actions respecting the state of the property and to pursue compensation in the form of a lien against the property after the fact.

10Additionally, it bears mentioning that issues previously struck from the issues list at a February 3, 2025 Case Management Conference ("CMC Decision") is not a pre-determination of the ultimate issues that the Tribunal must decide on the present de novo Hearing. For clarity, the CMC Decision states specifically that issues were removed to streamline the draft issues list in order to remove duplicative items and those not relevant to a hearing de novo. The CMC Decision does not make any ruling as to the legal and analytical framework that is applicable on this Appeal.

WHAT THIS CASE IS ABOUT

11This case must be grounded in the core dispute and the legislative framework under which it is brought before this Tribunal. Simply put, this Appeal is about the Robert McLaughlin House, a protected heritage structure under the OHA, and the Applicant’s desire for a full demolition permit so that it may redevelop its property in the most economically viable manner that optimizes its permitted uses and best suits its present-day surroundings. As the balance of this Decision lays out, the position of the Parties brings to the forefront the following issues which govern the organization of this Decision:

I. The applicable legislative and policy framework and the Tribunal’s jurisdiction in relation to the consideration of the present condition of the property and the costs associated with its retention and restoration. To this end, three sub-issues emerge:

A. Are the Provincial Planning Statement, 2024 ("PPS") and the City’s Official Plan ("OP") applicable to the required analysis?

B. Are the federal government’s Standards and Guidelines for the Conservation of Historic Places in Canada ("S&G") and Ontario’s Heritage Toolkit, including its eight guiding principles for heritage conservation ("EGP"), applicable to the required analysis?

C. Are the condition of a heritage property and the costs associated with its restoration appropriate factors of consideration on a section 34.1 application under the OHA?

II. Do the established exceptions allowing consideration of the condition of the Robert McLaughlin House apply in this case?

III. To what extent will the heritage attributes of the Robert McLaughlin House be impacted by the proposed demolition? This issue raises the following three sub-issues:

A. Does the Robert McLaughlin House retain its cultural heritage value and interest ("CHVI") and does the designation continue to remain supportable?

B. If so, is a full demolition of the Robert McLaughlin House consistent with the policies of the PPS?

C. If so, does a full demolition of the Robert McLaughlin House conform to the policies of the City’s OP?

12Prior to engaging in the discussion of these core issues, the Tribunal will first provide a brief overview of the Robert McLaughlin House, the heritage attributes set out in the Designation By-law (as defined below), and the Applicant’s proposed redevelopment.

THE ROBERT MCLAUGHLIN HOUSE

13It is uncontested that the Robert McLaughlin House is one of the four residential homes that Robert McLaughlin resided in during his time in Oshawa, and the last of his residential structures that remains standing today. Robert McLaughlin himself was one of the great Canadian industrialists of the early 20th century, and an early founder of the automotive industry in Canada. His move to the then Village of Oshawa in 1878 with his family and carriage works company precipitated what can be summarized as a great expansion for what became the automotive industry for General Motors in Oshawa, as well as the expansion of Oshawa Village itself, drawing hundreds of workers and residents into the area. Robert McLaughlin and his sons left a lasting legacy in Oshawa that remains today, with the Robert McLauglin House representing Simcoe Street as an historically wealthy neighbourhood for the affluent wherein many high-level meetings among major industrialists of the time took place.

14To frame the discussion that follows with appropriate context, visuals of the Robert McLaughlin House are helpful. The following four images depict the exterior of the Robert McLaughlin House during the following four time periods: (i) the earliest photo in evidence of the original structure; (ii) the structure pre-fire; (iii) the structure immediately post-fire; and (iv) the structure approximately five (5)years post-fire:

^{3 4}

^{5 6}

THE DESIGNATION BY-LAW AND HERITAGE ATTRIBUTES

15By-Law 115-2023, which designates the Robert McLaughlin House as being of cultural heritage value or interest ("Designation By-law"), was passed by City Council on October 2, 2023. The basis for the Designation By-law was a report authored by local heritage consultant Melissa Cole, dated November 2017 ("Research Report"; Exhibit 74).

16The Designation By-law sets out the following heritage attributes:

Design/Physical Value:

• The arrangement of the front (west) façade in a 3-bay design or "Georgian plan", but with more refined and delicate features, represented by:

o The central positioning of the front entranceway;

o The five (5) adjacent windows in a symmetrical 3 by 2 arrangement, with three (3) second storey windows positioned above, and one (1) window flanking each side of the entranceway;

• The scale of the house, being two (2) storeys in height and possessing a "T" shaped floor plan;

• The original brick cladding on the entirety of the house, including the "sun room", all of which has been painted white (the brick was originally yellow and featured quoins on the street-facing corners of the house, typical of Classical Revival styling);

• The existing window openings on the entirety of the house, save and except for the sun room, all exist in their original locations (symmetrically arranged on the west façade but irregular on all others), and are topped by brick lintels and are set on cement lugsills. The north façade features a bricked-in window opening which can be identified by the remnant brick lintel and concrete lugsills;

• The original "sun room" with copper roof to the south of the main house, containing generally the original arrangement of large windows, as well as a second entrance generally in its original location;

• The hipped main roof, featuring a large overhang around the entirety of the house, ornamented along the entirety of the west, south and north facades with dentil blocks along the cornices, as well as three chimneys, two centered [sic.] above the east façade and one centered above the copper roof on the south façade;

• The returned eaves along the entirety of the main roof, copper roof, as well as on the front portico; and,

• The front (west) central entranceway, typical of a "Georgian plan", featuring a portico with two columns set on a square plinth topped with simple square capitals.

Contextual Value:

• The location of the house one (1) City block south of Parkwood Estate at 270 Simcoe Street North and four (4) City blocks north of the former McLaughlin Carriage Company offices at 50-54 Simcoe Street North, all of which are situated facing onto Simcoe Street North, reinforcing its role as one of Oshawa’s most historically important corridors; and,

• The age of the house, being built in 1887 and representing one of the early homes built in the late 1800s and 1900s on Simcoe Street North that still exist between the downtown (King Street) and Adelaide Avenue, including 118 Simcoe Street North (c. 1900), 185 Simcoe Street North (c.1910) and 201 Simcoe Street North (c. 1890).

17It should be noted that there is agreement among the engineering experts that the roof of the sunroom is in fact a ferrous metal, and was mistakenly identified as a copper roof within the Designation By-law. There was also an error within Ms. Cole’s Research Report on which the Designation By-law is based, that the foundation of the structure is cement when it is in fact a stone foundation. This Decision does not turn on either of these errors.

THE APPLICANT’S PROPOSED REDEVELOPMENT

18The Applicant’s architectural designer, Mr. Hajatri, prepared concept drawings dated November 2022 ("Concept Drawings") and a design report dated February 17, 2023 ("Design Report") in support of the subject demolition permit application. The following figures are extracted from his Design Report and visually represent the Applicant’s conceptual redevelopment proposal:

19Mr. Hajatri’s designs were prepared with consideration for Ms. Cole’s Research Reports respecting the heritage attributes of the Robert McLaughlin House. His designs for the redevelopment of the property may be described as a mimicked rebuild, intended to replicate and commemorate the original structure with the following key intended rebuild features:

I. a symmetrical 3-bay plan for the new front façade following the Classical Revival style with the same low sloping roof and use of yellow bricks and quoins on the corners;

II. full-width front porch on the west façade (main entrance) as was within the original structure when first built;

III. continued use of a T-shaped floor plan;

IV. same size and orientation of the windows on the west façade (main entrance) as was within the original structure, built to modern thermal efficiency requirements;

V. same orientation of the building as the original structure;

VI. preservation of a two-storey height with a "3-dimensional" west façade (main entrance elevation) and new 4-storey structure behind; and,

VII. commemoration through a plaque naming the building "The McLaughlin House".

20The new development would house six residential units on floors 2 to 4, with two commercial units on the 1st floor. The Applicant is requesting a permit for full demolition in order to facilitate its design proposal. Mr. Hajatri emphasized the Applicant’s commitment to recycling materials from the existing structure where feasible in order to rebuild the front façade. However, at its core, his evidence is that the Applicant is unable to commit to a partial demolition with conservation of portions of the front façade due to structural uncertainty and related financial feasibility, as is addressed later in this Decision.

FINDINGS, DISCUSSION, AND ANALYSIS

ISSUE #1: LEGISLATIVE / POLICY FRAMEWORK AND TRIBUNAL JURISDICTION

Issue #1(A): Are the Provincial Planning Statement and Official Plan Applicable?

21Mr. Vernon emphasises that, on the present Appeal, there is no concurrent Planning Act application nor approval being sought. Accordingly, he submits that the Planning Act, including ss 2.1 and 3(5), are not engaged and do not form part of the legislative analysis required on the present Appeal. In support of his position, Mr. Vernon refers to R. v. Geil ("Geil")⁷. In Geil, the Court of Appeal accepted the argument that s. 3(5) of the Planning Act sets out a limitation in its applicability to only the "exercise of any authority that affects a planning matter" and therefore the then Provincial Policy Statement was found to have "no effect on the ordinary exercise of the Conservation Authority’s jurisdiction under the Conservation Act in regulating wetlands."⁸

22Mr. Vernon’s submission follows that the Tribunal’s jurisdiction in this matter arises exclusively under s. 34.1 of the OHA and does not relate to the exercise of any authority that affects a "planning matter". He therefore states that neither the PPS nor the OP have any applicability; nor does the S&G or EGP, on which the City relies. Mr. Vernon further submits that there is no statutory test set out in the OHA for the exercise of the Tribunal’s power under s. 34.1(5). He therefore turns to the case law on how such an application is to be assessed.

23Counsel for the City, Ms. Mayhew-Hammond, submits that the OHA has an established framework which must be followed for the alteration and demolition of designated heritage properties – conservation is the general rule and demolition is the exception. In considering a proposed demolition application, the Tribunal’s analysis must consider the heritage attributes in question and the extent to which they will be impacted by the proposed demolition or removal.⁹ Ms. Mayhew-Hammond argues that if the property in question meets the criteria of O. Reg. 9/06 to qualify for designation under the OHA and the designation is supportable, the Tribunal should then turn to view the proposed demolition in the context of the PPS and the OP, as well as the S&G and EGP.

Issue #1(A) Findings: The Provincial Planning Statement and Official Plan Are Applicable

24It may often be most efficient for this Tribunal to consider appeals under the OHA concurrently with any corresponding Planning Act application. However, there is no requirement that such applications be made in tandem nor appealed alongside one another. Accordingly, the route by which the Applicant has chosen to bring forward this Appeal, that being exclusively under s. 34.1 of the OHA, is a procedurally valid one. Notwithstanding, the Tribunal rejects the Applicant’s argument that this precludes the application of the PPS or OP from the legislative framework and policy analysis required on an appeal under s. 34.1 of the OHA.

25Firstly, the case of Geil, cited by the Applicant, is distinguishable. In Geil, the Court of Appeal considered a leave to appeal application under s. 131 of the Provincial Offences Act from a conviction for breaching a regulation under s. 28(16) of the Conservation Authorities Act. The legal issue raised by the Applicant was whether the Provincial Policy Statement of the time provided immunity for farmers from prosecution under the Conservation Authorities Act, where the offence related to the construction of a road incidental to farming activities. In dismissing the motion for leave, the Court of Appeal found the Applicant’s position had no merit. The Geil case, dealing with the "ordinary exercise of a Conservation Authority’s jurisdiction under the Conservation Authorities Act in regulating wetlands", and in particular with respect to a conviction under the Conservation Authorities Act, has no application to the present case, wherein the Tribunal is exercising its authority under the OHA respecting a demolition permit application.

26Secondly, the Tribunal finds that the PPS and the OHA are inextricably linked. It is commonly understood that the PPS operates under s.3 of the Planning Act and sets out broader provincial priorities related to land use planning. Those broader policies include the conservation of heritage resources under Chapters 4.1 and 4.6. The PPS itself also expressly refers to the OHA within the definitions of various terminology under Part 8. This, alone, demonstrates the interconnectedness of heritage conservation with greater provincial interests and municipal planning at large.

27As further set out in the PPS, municipal official plans are the most important vehicle to implement the greater provincial priorities. By operation of s. 3(5) of the Planning Act, official plan policies must also be consistent with the PPS. It then follows that all official plan policies which relate to heritage and inform the heritage priorities of a municipality also require consistency with the PPS. For this reason, even when a municipality is exercising its authority strictly under the OHA – for instance in issuing a designation by-law under s. 29 of the OHA – there is a "trickle-down" effect of the heritage provisions and policies within the PPS and official plans which must also necessarily inform the municipality’s actions. In other words, a municipality cannot act contrary to its own official plan or the PPS simply by exercising authority exclusively under a separate Act. This "trickle-down" effect of the PPS and official plan policies leads to its relevance on other actions taken by a municipality under the OHA, including on a section 34.1 application for a demolition permit. Any finding in the alternative could result in an inconsistent and selective approach within what is ultimately a harmonious interplay between the heritage priorities as laid out by the legislature, individual municipalities, and the broader provincial policies.

28The case of Orioncap Management Inc. v. Toronto (City) ("Orioncap")¹⁰, serves to illustrate the point. Orioncap involved a stand-alone appeal under s. 34.1 of the OHA. It matters not that there was an underlying application for a minor variance in Orioncap – that minor variance application was not appealed and did not form part of the issues decided by the Tribunal. Indeed, the Applicant in the instant case has also expressed that its desire for a demolition permit application is to facilitate its ultimate plans for redevelopment of the Subject Property. Similarly, the Applicant’s proposed redevelopment is not within the jurisdiction of the Tribunal on the present Appeal. Still, the Tribunal in Orioncap considered the PPS and the City of Toronto Official Plan policies on the demolition permit application, as they both contained provisions related to matters of heritage.

29Consider also, the case of Clublink. In the events leading up to the Town of Oakville’s notice of intention to designate the Glen Abbey golf course and surrounding property as a property of CHVI strictly under s. 29 of the OHA, heritage landscape experts were directed to evaluate more than 60 potential landscapes as part of its three-stage strategy to conserve significant cultural heritage landscapes across the town. The Court of Appeal noted that the concept of a "cultural heritage landscape" is not one found in the OHA itself, but is rather derived from the then Provincial Policy Statement, municipal by-laws, and other planning instruments.¹¹ This is further demonstrative of the inextricable link between the purpose of the OHA in heritage conservation, and the PPS, as well as municipal policy and planning instruments which implement the overarching conservation and preservation policies. Collectively, the PPS and municipal planning policies and instruments work in harmony with the purpose and provisions of the OHA, and the regulations made thereunder, not contrary to it.

30For clarity, this Tribunal finds that heritage conservation, and in particular an application for a demolition permit under the OHA, constitute matters related to greater municipal planning at large and that are of provincial interest, as contemplated by s. 3(1) of the Planning Act. To completely ignore the planning framework by working within an isolated vacuum under the OHA alone could result in a decision that could run contrary to the PPS and a municipality’s official plan. Such an outcome is to be avoided.

31Accordingly, a section 34.1 application under the OHA should, at minimum, be considered within the context of the PPS and the municipality’s official plan, as they are inextricably linked through the relevant policy provisions. However, for the purposes of s. 3(5) of the Planning Act, this Tribunal also finds that it is expressly named as an authority, and is required to act in a manner consistent with the PPS, and in conformity with the regional and municipal official plans, in exercising its authority under s. 34.1 of the OHA.

Issue #1(B): Are the S&G and EGP Applicable?

32Mr. Vernon submits that the S&G and the EGP are not applicable in the present case. He argues that, unlike in Orioncap, the City in the present case has not adopted either of those standards or guidelines in its OP. Mr. Vernon emphasizes that there is no requirement under the OHA that those standards or principles be applied to a section 34.1 application.

Issue #1(B) Findings: Tribunal May Have Regard for the S&G and EGP

33The Tribunal acknowledges that neither the S&G nor the EGP are requirements to be applied expressly by the OHA on a s. 34.1 appeal. The Tribunal further acknowledges that neither guideline has been adopted by the City in its OP, when the City has been at liberty to undertake to do so. This fact does distinguish the present case from Orioncap. The Tribunal therefore finds that neither consistency nor compliance with these guidelines or standards is required on the consideration of the proposed demolition permit application on this Appeal.

34The Tribunal also acknowledges that neither the S&G nor the EGP contemplate demolition as they are documents which are strictly focused on the conservation of heritage. They must, therefore, be approached with this context in mind. Notwithstanding, the Tribunal also acknowledges that the S&G is a widely accepted federal standard, and the EGP is a well recognized provincial guideline. Both are insightful guiding documents for decision-makers. As has been a practice of this Tribunal, the Tribunal finds that it may have regard to both the S&G and EGP as non-statutory guidelines that are informative contextual tools, and not binding law.

Issue #1(C): Are the Condition of a Heritage Property and the Costs Associated with its Restoration Appropriate Factors of Consideration on a Section 34 Application?

35Through his interpretation of the case law, the crux of Mr. Vernon’s argument is that an appeal under s. 34.1 of the OHA requires a balancing of private property rights with the public and community interest of conserving heritage resources. It is on this premise that he advances the Applicant’s core position that retention and restoration of the Robert McLaughlin House amounts to undue practical and financial hardship on a single landowner under the circumstances of this case, and in large part, is a crucial reason why full demolition is warranted. In support of his position regarding the need to consider private property rights in balancing community interests, Mr. Vernon relies on the higher court decisions of Oakville (Town) v. Clublink Corporation ULC ["Clublink"]¹², Richmond Hill Naturalists v. Corsica Developments Inc. ["Corsica"]¹³, St. Peter’s Evangelical Lutheran Church v. Ottawa ["St. Peter’s Church"]¹⁴ and Alma Heritage Estates Corp. v. St. Thomas (City) ["Alma ONSC"]¹⁵, which Counsel submits has also been endorsed by this Tribunal in Neufer v. Toronto (City) ["Neufer"]¹⁶ and Alma Heritage Estates Corp. v. St. Thomas (City) ["Alma OMB"]¹⁷.

36As part of this balancing exercise under s. 34.1 of the OHA, Mr. Vernon states that the physical condition of a heritage building and the costs associated with its restoration may be considered. This position rests on the submission that there is a difference between an objection to a notice of intention to designate under s. 29(5)¹⁸ of the OHA or an application to repeal a designation by-law under s. 32(1), with an appeal of a refusal to consent to a demolition permit under s. 34.1 of the OHA. Mr. Vernon concedes that a consideration of costs is beyond the jurisdiction of the Tribunal on appeals under s. 29(11) or s. 32(7) of the OHA, as confirmed by the Tribunal in Ferron v. Niagara Falls (City)¹⁹.

37However, Mr. Vernon argues that the Tribunal has also held that the physical condition of a building may be relevant under particular circumstances. In Lambeth Health Organization Inc. v. London (City) ["Lambeth"],²⁰ the Tribunal held that the physical condition of a heritage building is not a prescribed criterion under O. Reg 9/06, and thus usually not relevant. However, the Tribunal went on to set out a permitted exception when it stated: "if evidence on the physical condition is considered by the Review Board to be relevant to the historic integrity and/or heritage authenticity of an identified heritage attribute"²¹, then it may be considered.

38Mr. Vernon also relies on Alma OMB wherein, at a hearing to consider a settlement reached between the parties, the Board described the justification for a demolition permit application to include the irreparable structural integrity and condition of the property as follows [emphasis added]:

Accordingly, the Board is here charged with balancing the public and community interests in cultural heritage with the private property rights of the owner and must ensure, based on all of the evidence that the final terms and conditions of the Agreement, as amended by the Board if necessary, comport with these interests.

Distilled to its essence, the parties' fundamental justification for issuing a demolition permit for the subject site is its deplorable state of repair and the impossibility—both practical and financial—of restoration. Indeed, as the City argued, there is "some unanimity that the building is beyond remediation" and that the current economy of St. Thomas is such that adaptive re-use of a large, purpose-built structure like Alma College is unlikely.

All parties and participants agreed that the subject site had serious and reasonably irreparable structural problems. The fact that the Entranceway could be retained and that a portion of the structure could be replicated using materials that would prolong the life of the structure militated in favour of demolishing the existing structure.²²

39Ms. Mayhew-Hammond stands firm on her position that the Tribunal does not have the authority to grant a demolition permit in the circumstances of this case, because the OHA does not allow for the consideration of the condition of a heritage building, nor the costs associated with its repair. Ms. Mayhew-Hammond’s interpretation of the case law suggests that the only way the condition of the property becomes relevant, and therefore the overarching issue before this Tribunal, is the circumstance in which either, (i) proper investigation has been undertaken which demonstrates that the fire has destroyed the CHVI of the Robert McLaughlin House or (ii) where the structural integrity of the property is found to be so poor that demolition is inevitable – both scenarios which do not represent the circumstances of this case in the City’s submissions. Notwithstanding these two exceptions regarding the consideration of the condition of a property, Ms. Mayhew-Hammond further submits that the consideration of the costs of the physical maintenance, repairs, or of any proposed work related to the condition of the property, are beyond the Tribunal’s jurisdiction.

Issue #1(C) Findings: Cost of Retention/Restoration Beyond Tribunal Jurisdiction and Only Limited Exceptions for the Consideration of the Condition of a Heritage Property

40The case law cited by the Applicant makes clear that the purpose of the OHA is to provide for the conservation, protection, and preservation of the heritage of Ontario. In upholding that purpose, the Tribunal is required to balance the public interest in the conservation of heritage with the individual property rights of the landowners. However, this exercise should not be mischaracterized to suggest that heritage conservation must be balanced in a manner which does not run counter to the property owner’s rights. A brief review of the case law cited by the Applicant will explain why the core propositions have been misapprehended.

41The Ontario Court of Appeal in Clublink²³ dealt with whether the underlying application was then properly brought under s. 33 or s. 34 of the OHA. Contrary to the submissions of the Applicant in the case at hand, Justices Harvison Young and Doherty, for the majority, clarify that the Judge on the underlying application incorrectly characterized the purpose of the OHA as having a dual purpose which involves balancing heritage conservation in a manner which does not run counter to the property owner’s rights. This is because the Court of Appeal recognized that "as a substantive matter, the OHA does affect property ownership rights." ²⁴ However, the Court of Appeal clarifies that the legislative intent of the OHA "should be accomplished at the cost of the community at large, not at the cost of the individual property owner, and certainly not in total disregard of the property owner’s rights".²⁵ It is from this statement that the Applicant in the present case seems to have taken a leap to support its position that the present condition of the property, and the costs associated with its restoration, may be considered. However, this interpretation misconstrues the words of the Court of Appeal in Clublink.

42Firstly, these words originate from the 1982 Supreme Court of Canada ("SCC") Decision in St. Peter’s Church. In that case, the appeal arose from an application for judicial review of a designation by-law deeming the appellants’ property to be a heritage building under the OHA. At that time, the OHA required a city’s consent for the demolition of a heritage building, with provisions stating that consent would be deemed given if the city did not give notice of either consent or refusal of the demolition application within 90 days. The appellants in that case proceeded to partially demolish the subject building on the basis that they did not receive any formal notice of the city’s decision. In dismissing the appeal, Justice McIntyre, for the majority, overturned the lower Court decision, finding that the decision of council (made in the form of a by-law passed within the 90-day period), did not satisfy the statutory requirements for proper notice. The central issue before the SCC regarded the question of notice, and it is within the scope of the determination of this particular issue that the SCC made the comments cited by the Applicant in the present case. The full text of the paragraph is as follows [emphasis added]:

The Ontario Heritage Act was enacted to provide for the conservation, protection and preservation of the heritage of Ontario. There is no doubt that the Act provides for and the Legislature intended that municipalities, acting under the provisions of the Act, should have wide powers to interfere with individual property rights. It is equally evident, however, that the Legislature recognized that the preservation of Ontario's heritage should be accomplished at the cost of the community at large, not at the cost of the individual property owner, and certainly not in total disregard of the property owner's rights. It provided a procedure to govern the exercise of the municipal powers, but at the same time to protect the property owner within the scope of the Act and in accordance with its terms…²⁶

43McIntyre J. for the SCC accepted that while the OHA is to be construed with broad liberal interpretation and in a purposive manner, this could not be taken to mean that certain provisions of the OHA could be disregarded to give effect to what is to be taken as the purpose of the statute. Specifically, McIntyre J. stated [emphasis added]:

Accepting the approach so taken, I am not of the view, however, that in an effort to give effect to what is taken to be the purpose of the statute it is open to the court of construction to disregard certain provisions of the Act. The whole Act must be construed. It must be construed to give effect to the purpose above described but also to have regard for many provisions of the Act, particularly ss.34 and 67, the purpose of which is to protect the interests of the landowner concerned. To ignore these provisions, or to read them down to where they are deprived of any real significance, is not to construe the statute but to decline to assign any meaning to certain of the words that were used by the Legislature.

In pursuance of the expressed purpose of the Act, the Legislature set up a detailed scheme of procedure which, if followed, would achieve the objects of the enactment and at the same time protect the landowners to the extent prescribed by the Legislature. To protect the heritage of Ontario the municipalities were given power to designate property of their choice and to suspend thereby many of the rights of private ownership. These provisions of the Act should be given force and effect to secure the goals of the Legislature. To protect landowners, the Legislature provided certain procedures including those set out in s. 34, together with the provisions of s. 67, which are the ones with which we are concerned. These provisions, too, must have their effect.²⁷

44Accordingly, the proposition that heritage conservation should not occur "at the cost of the individual property owner" and "not in total disregard of the property owner’s rights" was in reference to upholding the purpose behind express provisions within the OHA intended to protect property owners through prescribed notice requirements – which substantive and legislative requirements the SCC deemed to have not been met. To read down the notice provisions, the SCC stated, "is not to construe s. 34(2), but simply to ignore it and by so doing to remove the protection given to the landowners by the Legislature".²⁸ Stated differently, neither the SCC in St. Peters Church, nor the Court of Appeal in Clublink, used the proposition of balancing private property rights to insert a factor of consideration into the analysis required under a section 34 demolition permit application that is not otherwise expressly contemplated by the OHA itself.

45Returning to Clublink, the Court of Appeal rendered its decision under a former version of the OHA, since repealed. At that time, there was a significant difference in the appeals process between applications brought under s. 33 versus s. 34 of the then in-force version of the OHA. As the Court of Appeal explained, appeals to the Tribunal under s. 33 at that time would result in a report in which the Tribunal would either recommend that the application should, or should not, be approved. However, the Tribunal’s report was not binding on the municipal council.²⁹ In contrast, s. 34 of the then in-force version of the OHA had evolved, through amendments in 2005, to allow an appeal to the Tribunal, from which the Tribunal’s decision was binding on the municipal council.³⁰ To this end, the counterbalance to protect private property rights against the wider legislative powers granted to a municipality allowing a complete denial of a demolition permit application, was by way of the procedural protection afforded through an appeal route to the Tribunal. Such an appeal route could, essentially, overturn the municipal council’s decision (unlike the appeal route under s. 33 at that time).³¹

46This reading of Clublink aligns with the City’s submission, which the Tribunal accepts, that private property rights are balanced against the public interest of heritage conservation through the procedural protections afforded by way of an appeal route against the decision of the municipal council. There is no language in Clublink expressed by the Court of Appeal to the effect that the present condition of a heritage property, or the costs to remediate and conserve said property, form part of the analysis to be undertaken in the exercise of balancing private property rights with the greater public interest of heritage conservation.

47The Tribunal turns now to case law which the Applicant suggests is demonstrative in showing that the condition of a property, and the economic viability of its restoration, form part of the balancing exercise respecting private property rights of landowners.

48The first is Alma ONSC, which the Tribunal does not find to be instructive. While the facts of Alma ONSC bear some similarity to the facts in the present case, those facts are ultimately not relevant, as they deal with the history surrounding property standards orders that are not within the scope nor jurisdiction of the Tribunal on the present Appeal. In Alma ONSC, the Superior Court dealt with an application to quash a by-law passed by a municipality for illegality under s. 273 of the Municipal Act, 2001. The by-law in question purported to prescribe the minimum standards for the maintenance of heritage attributes of properties so designated under the OHA. The two grounds for the application were: (i) that the by-law was passed in bad faith; and (ii) that the key provisions of the by-law were ultra vires of the city’s powers under the OHA under which the by-law was passed. Since the Superior Court found the impugned provisions of the by-law were ultra vires, it did not consider the bad-faith grounds of the application. It was within the summary of the facts, and in obiter, that Heeney J., for the Court, commented as follows [emphasis added]:

[23] The end point of the above history is this: despite the existence of current, detailed reports indicating that restoration work on Alma College was no longer economically viable, which reports were in the hands of the City Clerk and two councillors but were apparently denied to the other councillors, City Council proceeded to pass a by-law for the purpose of compelling the owner to expend substantial sums of money restoring that same property.

[24] This paradox would be a compelling factor on a consideration of the bad faith issue. However, as indicated at the outset of these reasons, it is not necessary to examine that issue to dispose of this application.³²

49This obiter commentary only suggests that the timing of the by-law, and the intent behind it, might be considered on an analysis of a bad-faith argument to quash the by-law under the Municipal Act, 2001. It does not deem these factors to be considerations forming part of the analysis for a demolition permit application under the OHA.

50Following Alma ONSC, the same property was the subject of an appeal before the Ontario Municipal Board in Alma OMB. The Applicant relies on this decision to suggest that in considering the merits of a settlement reached, the Board found it was "charged with balancing the public and community interests in cultural heritage with the private property rights of the owner."³³ In considering this submission, this Tribunal must revert again to Clublink, decided by the Court of Appeal after Alma OMB. Clublink clarifies that the purpose of the OHA is not to be mischaracterised as involving "balancing heritage conservation in a manner which does not run counter to the property owner’s rights." Rather, the role of the Tribunal is to ensure the safeguarding of the procedural protections afforded to property owners, which is the mechanism that provides the balancing of private property interests against the overarching interests of the public in heritage conservation.

51The Applicant also emphasizes the third and fourth paragraphs on page 13 of Alma OMB. Therein, the Board expressed that the parties’ fundamental justification in favour of a demolition permit was the site’s "deplorable state of repair and the impossibility – both practical and financial – of restoration." The Applicant cites a particular paragraph which explains that all parties agreed that the site had serious and "reasonably irreparable structural problems". What the Applicant does not raise, are the words of the Board in between which reveal that the municipality agreed with the irreparable condition of the property, and that there was "some unanimity that the building is beyond remediation".³⁴ In simpler words, the irreparable structural problems were mainly uncontested. There is no such unanimity or agreement in the present case.

52More importantly, notwithstanding the unanimity on the severe structural condition of the property and the municipality’s agreement to the demolition permit, the Board made a contrary recommendation that the heritage tower on the property be retained along with the heritage entranceway. In the event that their retention was impracticable, the Board recommended replication. Accordingly, retention was still the recommendation despite an agreement between the parties on the deplorable state of repair and irreparable structural problems.

53Neufer, too, is distinguishable and fails to support the Applicant’s position. In Neufer, the Tribunal reiterates that its role on an appeal from a refusal to issue a demolition permit "is a balancing of the public and community interests against those private property rights of the owner". However, it is important to note that the context of this commentary was in response to a competing argument which challenged that the question was instead "whether there are greater public interest goals in favour of demolition than the public interest goal of preservation in deciding whether to permit demolition or not"³⁵, which the Tribunal rejected. The Tribunal went on to find that the applicant was not foreclosed from challenging the CHVI of the property under s. 30(2) of the then OHA, on account of the ‘notice of intention to designate’ having already decided the issue of designation and CHVI. It is the CHVI that resulted in the refusal by the city to grant the demolition permit, and the Tribunal therefore found it to be those very reasons the owner must have the right to challenge. This procedural right to challenge the CHVI is the protection of the private property rights of the owner that was afforded in Neufer.

54Finally, it is important to note that in Lambeth, the Board dealt with an objection to a notice of intention to designate a property with CHVI under s. 29 of the OHA. Ultimately, the Board found that the evidence was not sufficiently compelling for any one of the three or more criteria required under O. Reg 9/06 to have been met to proceed with designation. It is only following its key findings on this core issue, and within the discussion of the heritage attributes set out in the notice of intention to designate, that the Board’s comments respecting the condition of the property arises. The Board examines that the OHA defines heritage attributes in their physical sense, being the physical attributes that contribute to their CHVI. The Board then expressly cautions against considering the evidence of the physical condition of a property. It is only under a carefully carved-out exception that the Board suggests the physical condition may be considered – the permitted exception being "…if evidence of the physical condition is considered by the Review Board to be relevant to the historical integrity and/or heritage authenticity of an identified heritage attribute."³⁶ [Emphasis added.]

55In Lambeth, it was found that many of the key attributes identified in the notice of intention to designate had actually been altered or removed, and therefore the condition of those attributes was found to be relevant to the question of historical integrity and heritage authenticity in the circumstances of that case. However, this appears to be a peripheral factor that was considered and was not the sole factor on which the Board recommended against the designation by-law.

56To summarize, balancing the public interest in the conservation of heritage resources with the individual property rights of landowners does not imply that heritage conservation must not run counter to a property owner’s rights. What the exercise requires is to ensure that private property rights are balanced through upholding the procedural protections afforded to property owners by the legislative and policy scheme. Examples of those procedural protections include challenging the appropriate appeal route to this Tribunal, holding a municipality accountable to requisite notice provisions, or allowing an applicant to challenge the CHVI, being the very reasons why a municipality would refuse an application for a demolition permit.

57In very narrow and exceptional circumstances, the condition of a property might be a factor that the Tribunal may have regard to in its discretion when considering whether to grant a demolition permit application: (i) if evidence of the physical condition is considered by the Tribunal to be relevant to the historical integrity and/or heritage authenticity of an identified heritage attribute;³⁷ or (ii) where the structural integrity of a property is found to be so irreparably poor that demolition is inevitable.³⁸

58For the reasons explained further below, the Tribunal concludes that the limited exceptions do not apply in this case. Before addressing those reasons, a concise summary of the legislative and policy framework governing this Appeal is warranted.

Summary of the Legislative / Policy Framework and Applicable Legal Test

59The Ontario Municipal Board provided clarity on how a section 34.1 demolition permit application is to be evaluated in ADMNS Kelvingrove Investment Corp. v. Toronto (City) ("Kelvingrove").³⁹ To start, one must understand the purpose of the OHA. That purpose, as reiterated by the Court of Appeal in Clublink, is to provide for the "conservation", "protection", and "preservation" of the heritage of Ontario. The Board in Kelvingrove explained that these terms were not intended to be synonymous and accepted the definitions as laid out in the Glossary of the S&G:

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

Preservation can include both short-term and interim measures to protect or stabilize the place, as well as long-term actions to retard deterioration or prevent damage so that the place can be kept serviceable through routine maintenance and minimal repair, rather than extensive replacement and new construction.

Conservation: all actions or processes that are aimed at safeguarding the character-defining elements of a cultural resource so as to retain its heritage value and extend its physical life. This may involve "Preservation," "Rehabilitation," "Restoration," or a combination of these actions or processes.

Rehabilitation: the action or process of making possible a continuing or compatible contemporary use of a historic place or an individual component, through repair, alterations, and/or additions, while protection its heritage value.⁴⁰

60The Board illustrated that the distinctions between these terms help to explain why "there is no need to presume a conflict between "heritage" and "development"". The Board underscored that while the PPS definition of "conserve" refers to heritage values, attributes, and integrity being retained, it does not prevent a property from undergoing physical change through rehabilitation, harmonious expansion, and/or conversion where appropriate. As stated by the Board, "conservation" is not the opposite of "development"; rather, read together "…"conservation" combines spotlighting a property’s heritage attributes, while simultaneously assisting its physical and/or economic re-use."⁴¹ Notwithstanding, the Board emphasized that "conservation" is the general rule, and demolition is the exception, stating "as with all statutes, it is the general rule which provides broad discretion, and exceptions are to be approached more restrictively."⁴²

61In terms of the process of how the Tribunal is to evaluate such an application, Orioncap provides a clear and concise summary. In Orioncap, this Tribunal clarified that an appeal under s. 34.1 of the OHA is not an appeal of the original designation of a property as having CHVI. That is because s. 34.1 expressly recognizes that the heritage attributes in question have already been determined and codified in the designation by-law. However, in considering a proposed demolition permit application, the Tribunal is to 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."⁴³

62In answering this question, the Tribunal’s decision must be consistent with, and conform to, the provisions and policies of the PPS and City OP. The Tribunal may also have regard to the S&G and the EGP. In narrow and exceptional circumstances, the Tribunal may also have regard to the condition of a property where, in its discretion: (i) it considers the evidence of the physical condition to be relevant to the historical integrity and/or heritage authenticity of an identified heritage attribute; or (ii) where the structural integrity of a property is found to be so irreparably poor that demolition is inevitable. The costs associated with the preservation and restoration of a heritage property is not an appropriate factor for consideration and falls beyond the jurisdiction of the Tribunal on an appeal of a demolition permit application under the OHA.

ISSUE #2: DO THE ESTABLISHED EXCEPTIONS ALLOWING CONSIDERATION OF THE CONDITION OF THE SUBJECT PROPERTY APPLY?

63The Applicant submits that the structural condition of the Robert McLaughlin House is in a significantly deteriorated state and must factor into the analysis for a demolition permit application. In support, Mr. Vernon points to the following key evidence:

I. the Applicant obtained professional reports following the fire from 30 Forensics Engineering, dated November 25, 2019, and January 7, 2020, respectively (Exhibits 7 and 8: "30 Forensics Reports"), which recommend complete demolition of the structure;

II. the Agreed Statement of Facts – Engineering (Exhibit 36: "Agreed Facts"), wherein both Parties’ structural engineering experts agree that a complete demolition and replacement of the interior wooden structure, including the entire roof of the house is recommended;

III. agreement among the evidence of both engineering experts that between 30- to 40-percent of the exterior of the brick on the west elevation of the structure is not salvageable;

IV. the evidence of the City’s historical restoration expert, Mr. Plue, who recommends replacement of all of the interior lumbar of the structure;

V. the general agreement among all experts that the windows at the southwest corner of the structure are damaged beyond repair;

VI. the general agreement between both engineering experts that further investigation of the foundation is recommended to ascertain the extent of repair required;

VII. the evidence of Mr. Plue and Mr. Teron on behalf of the City, respectively, conceding that removal of the portico is required because of fire damage (per Mr. Teron), and because of the need to restore the bricks behind the portico (per Mr. Plue); and,

VIII. the suitability and practicability of retaining the remaining brick walls is questionable given the City’s own evidence from Mr. Teron and Mr. Plue that the masonry exterior of the building requires substantial repairs.

Issue #2 Findings: Established Exceptions Allowing Consideration of the Condition of the Robert McLaughlin House Do Not Apply

64The Tribunal finds that the two exceptions permitting the consideration of the physical condition of the heritage property in question, do not apply. Dealing with the second exception first, the evidence of the Applicant’s own experts does not support that the structural integrity of the Robert McLaughlin House is so poor that demolition is inevitable.

65The earliest report respecting the structural integrity of the Robert McLaughlin House are the 30 Forensics Reports. There are two fundamental evidentiary issues with these reports. Firstly, the reports were tendered into evidence through the oral testimony of Ms. Chhangur. Given that the authors of the reports were not called as witnesses to testify to the veracity of their content, and on the objection raised by the City, it was agreed that the reports were being tendered as fact evidence only, and not as opinion evidence for the truth of the technical and scientific conclusions therein – so was the Tribunal’s ruling. Secondly, there is no indication that the authors of the reports, Claire Miller and Grant Elligsen, respectively, hold any specialized expertise in heritage conservation or membership with the Canadian Association of Heritage Professionals ("CAHP"). There is, indeed, no recognition within either of the reports that the property in question is the Robert McLaughlin House, nor any acknowledgment of the property being on the City’s Register of Properties of Cultural Heritage Value or Interest as a listed, non-designated property.

66Notwithstanding these two fundamental evidentiary issues, the 30 Forensics Reports themselves do not demonstrate that the structural integrity of the property is so poor that demolition is inevitable, such to trigger application of the exception. To the contrary, the final report of January 7, 2020 concedes that restoration of the subject property remains an available option, despite several stated challenges. The recommendation for demolition was expressly stated to be on the basis that it would require "less time and resources, making the project more efficient and significantly more cost-effective". The Tribunal has already affirmed that the costs of restoration are beyond its jurisdiction for consideration on a demolition permit application.

67Similarly, the evidence of the Applicant’s experts called at the Hearing also generally conceded that, while arguably not financially practicable, restoration of the subject property remains possible.

68Significantly, Mr. Kruczkowski being the Applicant’s own structural engineer with expertise in rehabilitation of heritage structures concedes that the foundation walls may be repaired in-situ, and so too the majority of the four enveloping brick façade walls. His overall conclusion that a full demolition is warranted is premised on his express opinion that "the wholesale demolition will be completed in a shorter time frame used [sic] via machinery, as opposed to a methodical shoring of walls and piece by piece removal requiring more stringent safeguards". This evidence alone is sufficient to demonstrate why the exception of inevitable demolition due to irreparable structural integrity is not triggered. It matters not that the process for retention and rehabilitation would be more involved, lengthy or costly; this is often the case for the restoration of any heritage structure. For the exception to apply, the condition must be so poor that demolition is inevitable. The Tribunal finds Mr. Kruczkowski’s evidence to have demonstrated the opposite to be true, albeit with increased costs, which is a matter beyond the scope of Tribunal’s required analysis on a s. 34.1 application.

69Returning to the first exception, the Tribunal does not consider the totality of the evidence on the physical condition of the Robert McLaughlin House to be relevant to the historical integrity and/or heritage authenticity of the identified heritage attributes such that would trigger this exception.

70The Tribunal acknowledges that the Robert McLaughlin House has sustained damage as a result of, and incidental to, the fire, as well as undergone past alterations including painting of the exterior brick and removal of an original veranda. The Tribunal further acknowledges the evidence of Mr. Kruczkowski that the following heritage attributes have been impacted, requiring demolition or repair:

I. An approximate 30- to 40-percent of the exterior masonry of the west elevation façade;

II. Portions of the T-shape floor plan (at the southwest corner), where the interior structure, exterior cladding, and roof are damaged;

III. The original brick which has been painted over, specifically at the southwest corner, where damaged;

IV. Some of the existing window openings, brick lintels, and concrete lugsills, at the southwest corner, where the walls are damaged;

V. The interior brick wall of the sunroom;

VI. The entire hipped main roof;

VII. The returned eaves along the entire main roof;

VIII. Some, or potentially all, of the cornices and dentils at the southwest corner, (dependant on whether the cornices and dentils are connected directly to the roof or wall structure); and,

IX. The front entranceway portico, which may include the columns with square plinths and simple square capitals.

71Notwithstanding the level of damage sustained, when balanced against all heritage attributes identified within the Designation By-law, the Tribunal finds that a significant portion of the structure containing heritage attributes remains intact and in fair condition. The current physical condition therefore does not undermine the historical integrity and heritage authenticity of the remaining structure such to trigger application of the exception. To this end, the collective evidence establishes that most of the irreparable damage sustained was localized to the interior of the structure and the roof. However, the physical and design attributes qualifying for heritage designation relate almost exclusively to the exterior of the structure, save for the original brick within the sunroom and the T-shaped floorplan. So, while a complete demolition and replacement of the interior wooden structure is mutually recommended by the experts, the condition of the interior wooden structure is not found to be relevant to the question of historical integrity and heritage authenticity. As for the T-shape floor plan, only portions at the southwest corner were stated to be damaged by Mr. Kruczkowski’s own evidence, not the entirety. Both the historical integrity and heritage authenticity of the floorplan remain intact.

72In respect of the exterior condition, the collective evidence demonstrates that the most significant and irreparable damage was sustained to the roof, followed by 30- to 40-percent of the west elevation masonry wall. Removal of the entranceway portico was also recommended. Notwithstanding some further damage to other portions of the exterior attributes, the Tribunal is persuaded by the evidence of Mr. Teron that approximately 90 percent of the exterior brick is in fair or good condition requiring some level of repair that falls within industry practice of standard maintenance. Mr. Teron’s evidence indicates that of the approximate 10-percent of damaged brick, 6- to 8-percent is concentrated in the area where the fire damage occurred, but that overall, the exterior masonry is structurally sound. While Mr. Kruczkowski was reluctant to agree definitively to a precise figure of salvageable brick during his cross-examination, the Tribunal finds Mr. Teron’s calculations to generally be in alignment with the figures representing exterior masonry damage as set out in the Agreed Facts.

73The Tribunal finds Mr. Teron’s overall evidence more persuasive than Mr. Kruczkowski’s. Mr. Teron’s reports and evidence readily conceded that there is damage to, or deterioration of, other heritage attributes. Some of those attributes include step-cracking in the exterior masonry, peeling paint on exterior masonry, cracked windowsills, and deterioration of the brick chimneys. However, Mr. Teron explained that these areas are both practically and feasibly capable of being restored through standard methods of repair and repointing. In contrast, the Tribunal found Mr. Kruczkowski’s evidence to have inflated the repair work involved with such damage, including the suggestion that the exterior step-cracking could potentially be caused by a design issue or a foundation issue requiring further investigation. While the costs of such repair work are not relevant, the Tribunal finds this evidence to have undermined the credibility of Mr. Kruczkowski’s overall opinion as presenting in a manner to be most favourable to the Applicant’s stated objectives, rather than the conservation of a heritage resource. This evidence also supports that, ultimately, both experts agree that the exterior masonry can be repaired and restored.

74The totality of Mr. Kruczkowski’s evidence itself is also insufficient to demonstrate that the current condition has relevance to the historical integrity and heritage authenticity of the remaining attributes. Those attributes include:

I. the balance of remaining window openings (constituting the majority) which continue to exist in their original locations symmetrically arranged at the front façade with 5 adjacent windows in a 3-by-2 arrangement, 3 second-storey windows positioned above, and 1 window flanking each side of the entranceway;

II. the arrangement of the front façade in a 3-bay design or Georgian Plan with more refined and delicate features represented by the central positioning of the front entranceway;

III. the scale of the house being two storeys in height and possessing a T-shaped floor plan; and,

IV. the original brick cladding and age of the house, being built in 1887 and representing one of the early homes built in the late 1800-1900s on Simcoe Street North that still exists between the downtown and Adelaide Avenue today.

75The Tribunal, therefore, heeds the caution in Lambeth and finds it will not consider further the evidence of the physical condition of the Robert McLaughlin House in the requisite analysis for whether a demolition permit is warranted.

ISSUE #3: TO WHAT EXTENT WILL THE HERITAGE ATTRIBUTES OF THE ROBERT MCLAUGHLIN HOUSE BE IMPACTED BY THE PROPOSED DEMOLITION?

Issue #3(A) Findings: The Robert McLaughlin House Continues to Retain its Cultural Heritage Value and Interest and the Designation Remains Supportable

76To reiterate, the requisite analysis for the Tribunal on a section 34.1 demolition permit application under the OHA arising from the case law is to consider the heritage attributes in question, and the extent to which they will be impacted by the proposed demolition or removal. The determination of this issue will involve a degree of overlap with the considerations relating to the original designation. This issue is also captured by the two-part question identified as Issue No. 4 within the Parties’ Issues List, which asks, (i) whether the subject property retains its cultural heritage value or interest; and (ii) whether the subject property continues to meet sufficient criteria for designation under Part IV of the OHA.

77Of the five witnesses called by the Applicant during the course of the three-week Hearing, none provided written witness statements nor any oral evidence addressing this specific issue. Mr. Vernon’s submissions on the matter amount to questioning the credibility and reliability of the City’s expert witness in heritage matters and architecture, Mr. Santamaura, as well as the research report on which the Designation By-law was based. The balance of the Applicant’s evidence that can be said to relate to this issue was tendered by Mr. Kruczkowski, and addressed, solely, the physical and structural integrity of the CHVI. That evidence has already been addressed in the discussion above dismissing the relevancy of the physical condition of the property related to its historical integrity and heritage authenticity.

78Mr. Vernon’s key submissions on this issue may be summarized as follows:

I. The Designation By-law passed by City Council was based on Ms. Cole’s Research Report (Exhibit 74) which predates the fire and was never updated by the City prior to designation.

II. Ms. Cole’s Research Report is not reliable given she is the curator of the Oshawa Museum, lacking education and training in architecture and professional membership with CAHP.

III. Ms. Cole’s report contained errors, including that the foundation of the structure was cement, and that the roof of the sunroom was copper, the latter of which is repeated in Mr. Santamaura’s written witness statement.

IV. Mr. Santamaura admitted during cross-examination that there is no heritage value in the white paint covering the exterior brick and the painted brick itself diminishes the masonry’s heritage value.

V. Mr. Santamaura admitted on cross-examination that removal of the original Regency-style verandah and installation of the current portico reduced the heritage value of the current structure, and that if a replica of the original Regency-style verandah was installed, the heritage value could be improved.

79Similar to the circumstances in Orioncap, the facts of the present Appeal are distinguishable from Kelvingrove in that there has been no challenge to the criteria under O. Reg 9/06 having sufficiently been met for designation of the Robert McLaughlin House under the OHA. Other than Mr. Kruczkowski speaking to the physical and structural integrity of the heritage attributes damaged by fire, the Applicant has not tendered any other expert opinion in matters of heritage examining the validity of the remaining attributes qualifying for designation. Thus, just as in Orioncap, the Tribunal here too has less of a basis on which to question the validity of the original designation of the heritage attributes in this Appeal than in Kelvingrove.

80Mr. Vernon raises the timing of the Designation By-law, and that Ms. Cole’s Research Report was never updated before the designation, which report contains two errors regarding the copper sunroom roof and cement foundation. To this end, Mr. Kruczkowski testified that he has never before come across a case in which a structure is designated under the OHA after a fire loss. Mr. Kruczkowski’s suggestion is that the Designation By-law does not acknowledge the fire nor property damage itself, thereby appearing to improperly apply retroactively to force restoration of pre-fire heritage attributes.

81The Tribunal rejects the notion that the City has acted in any untoward manner in the timeline of events, or that the Designation By-law is operating in a "retroactive" manner. Firstly, the Tribunal accepts the evidence of the City’s Land Use Planner, Mr. Leherbauer, who explained that it is not uncommon for a City to delay the process of designation to avoid raising bureaucratic road-blocks for a permit allowing alterations for restoration where there may be indications of that potential. Secondly, and as already addressed in the discussion of the physical condition exceptions, a significant portion of the heritage attributes in question are found by this Tribunal to remain structurally sound, and in between fair to good condition. Mr. Santamaura’s evidence, which this Tribunal accepts and addresses further below, supports the same conclusion from an architectural and heritage standpoint. So, the Designation By-law’s lack of reference to the fire and related damage does not, ultimately, change the fact that a significant portion of the structure retains its CHVI, and that the heritage attributes in question continue to qualify for designation today. Had the Applicant had evidence to the contrary, it was at liberty to tender that evidence at the Hearing of the present Appeal. It chose not to do so.

82The Tribunal also rejects Mr. Vernon’s raised concerns respecting Ms. Cole’s qualifications underpinning her Research Report. While Ms. Cole’s report contains two errors related to the mistaken cement foundation and copper sunroom roof, the balance of her opinion is supported by Mr. Santamaura who was duly qualified to provide opinion evidence in heritage matters and architecture. The Tribunal found Mr. Santamaura’s evidence to be uncontroverted and persuasive, the key points of which are summarized as follows:

I. The Robert McLaughlin House continues to retain its specific design and physical heritage attributes identified in the Designation By-law notwithstanding the fire and related damage, including:

A. being an example of the Classical Revival style architecture;

B. unchanged arrangement of the front façade 3-bay design and central positioning entryway with refined and delicate features;

C. unchanged composition and fenestration detailing of the windows in a symmetrical 3-by-2 arrangement;

D. the majority of windows remaining intact without damage, and damage having been sustained to two windows requiring repair;

E. the majority of the original brick cladding which has been painted, remaining largely intact and an example of solid double-whythe brick construction;

F. the masonry detailing;

G. portions of the returned eaves around the roof remaining overhanging, undamaged and in good condition;

H. the majority of dentil treatments carrying around the entirety of the building remaining, despite damage to some;

I. the chimneys remaining in fair to good condition requiring pointing and masonry treatment; and,

J. the building’s massing of 2 storeys remaining and possessing a T-shaped floorplan;

II. The Robert McLaughlin House continues to retain its contextual heritage attributes with its location in proximity to Parkwood Estate and its contributions to the historical streetscape of Simcoe Street North;

III. The Robert McLaughlin House continues to retain its cultural and associative value as an original structure with direct associations to Robert McLaughlin and representing the culmination of his life, from a farm in the Village of Tyrone to becoming one of the great Canadian industrialists of the 20th century, employing thousands of people over the years, thereby drawing in residents and expanding the City; and,

IV. The Robert McLaughlin House also continues to hold contextual value not captured in the Designation By-law as it evolved to become a community landmark.

83The Tribunal therefore accepts the opinion of Mr. Santamaura that the Robert McLaughlin House continues to meet at least 4, if not 5, of the criteria to be duly qualified for designation under the OHA, when only 1 of those criteria is required pursuant to the regulation in place at the time. The designation of the McLaughlin House is therefore supportable. This Tribunal in Orioncap summarized succinctly that, where the property duly qualifies for designation under the OHA and the designation of the property is supportable, the Tribunal should then turn to view the proposed demolition in the context of the PPS and the OP.

Issue #3(B) Findings: A Full Demolition of the Robert McLaughlin House is Not Consistent with the Policies of the Provincial Policy Statement

84Mr. Vernon’s alternative argument to the application of the PPS suggests that if the PPS is found to be applicable, it does not foreclose the granting of consent to a demolition permit by the Tribunal. This position is based on Mr. Vernon’s argument that the term "conserved" within the PPS envisions the possibility of mitigative measures and/or alternative development approaches developed in a conservation plan or heritage impact assessment ("HIA").

85The Tribunal finds Mr. Vernon’s position to be untenable. On one hand, he rightly concedes that the PPS requires a conservation plan or HIA to demonstrate a development approach which allows the alteration or potential demolition of a property while appropriately conserving its heritage attributes. On the other, he argues that an HIA is not required by the Applicant in the circumstances of the present case because there was no strict requirement for one under the OHA nor the City’s application requirements, and no request for one by the City at the time of its original application nor up to the time of the present Appeal.

86To be clear, the language of the PPS does require either a conservation plan, HIA, or other equivalent evidence demonstrating heritage resources will be conserved. The wording within the applicable provisions of the PPS related to heritage is not suggestive, but mandatory. The relevant provisions of section 4.6 state [emphasis added]:

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

2. Planning authorities shall not permit development and site alteration on adjacent lands to protected heritage property unless the heritage attributes of the protected heritage property will be conserved.

87The term "conserved" is defined within the PPS as [emphasis added]:

Conserved: means the identification, protection, management and use of built heritage resources, cultural heritage landscapes and archeological resources in a manner that ensures their cultural heritage value or interest is retained. This may be achieved by the implementation of recommendations set out in a conservation plan, archeological assessment, and/or heritage impact assessment that has been approved, accepted or adopted by the relevant planning authority and/or decision-maker. Mitigative measures and/or alternative development approaches should be include in these plans and assessments.

88The failure to obtain an HIA or to tender other equivalent evidence from a qualified professional is, ultimately, not an issue that turns on whether the Applicant was seeking partial or full demolition, whether it constituted prescribed criteria under OP policy, prescribed information under s. 34 of the OHA, nor whether the City ought to have requested it under s. 34(3) of the OHA. While the Tribunal would be sympathetic to the position of an applicant who could not reasonably have known any better, the situation at present involves representation by Counsel who concedes that an HIA or equivalent would be necessary to address the relevant PPS analysis. How else could an Applicant demonstrate a development approach which appropriately conserves the subject heritage resources at issue? Simply put, it could not.

89Any Applicant appearing before the Tribunal with a request for full demolition of a heritage resource ought to be prepared with the best evidence supporting such a request at the outset, and not as an intended condition of the requested permit – whether or not such evidence is stated to be a requirement by the City. At minimum, such evidence ought to include a professional opinion by a qualified individual regarding the impact of demolition on the heritage resources in question and whether demolition or site alteration might be carried out in a manner that ensures the heritage resources in question will be conserved as set out within the PPS. The Tribunal further finds it would be inappropriate to grant a demolition permit at this stage by deferring the requisite HIA and/or conservation plan, as required by the PPS, as a condition to the granted permit.

90Further still, the Applicant did not call a professional land use planner as witness to testify to the application of the PPS (nor the OP); nor did any of its 5 witnesses called, speak to these issues. Significantly, Mr. Hajatri, who assisted the Applicant in preparing the Concept Drawings and the Design Report in support of the s. 34 demolition application, also makes no remarks on the application of the PPS or the OP. Within the introduction to his Design Report, Mr. Hajatri states that the report "is provided as a supplement to the proposed plans to be read alongside the conservation plans shown." However, no technical conservation plan exists, other than Mr. Hajatri’s general remarks within his report that the rebuild is intended to mimic key heritage attributes. Mr. Hajatri himself conceded on cross-examination that his report was never intended to be held out as from the professional standards of practice for heritage architects, as he is neither qualified with expertise in heritage matters nor architecture.

91The Tribunal is therefore left with limited evidence from the Applicant and finds as follows. The Robert McLaughlin House meets the definition of "protected heritage property", as well as the definition of containing a "built heritage resource", under the PPS. Having consideration for the mandatory language of the PPS which requires that heritage resources shall be conserved, the Tribunal finds the Applicant has not sufficiently demonstrated that a full demolition is warranted where it has not taken steps to appropriately show that it has identified, will protect, and will manage the Robert McLaughlin House in a manner that ensures its cultural heritage value and interest will be retained.

92Additionally, while the PPS definition of "conserved" includes mitigative measures, the Tribunal has long accepted that demolition of a heritage attribute, with retention of its CHVI strictly through commemoration, is a last resort.⁴⁴ To this end, the Tribunal is further persuaded by, and accepts, the evidence of Mr. Santamaura. Mr. Santamaura testified that, in following the EGP and industry accepted hierarchy of conservation strategies, being to first preserve, then conserve, then re-locate on-site, re-locate off site, and as last resort to demolish and commemorate, that a full demolition of the Robert McLaughlin House would result in a complete loss of all design and physical value as well as the contextual and landmark value of the structure.

93Mr. Santamaura did concede that a rebuild of the original Regency-style verandah could improve the heritage value of the property, and that a dedicated rebuild with commemoration of the structure would mitigate in maintaining some of its lost associative and contextual value from a full demolition. However, Mr. Santamaura’s overall opinion maintained that a full demolition, particularly with a new 4-storey structure behind the west elevation façade, would ultimately result in a negative impact on the heritage value of the property on a net basis. He stated that the immense historical value of the property is expressed in the building, as the building itself is the expression of, and container for, the associative and contextual history of the property. As stated by Mr. Santamaura, no alternate options for preservation were explored nor submitted for review in either an HIA or strategic conservation plan.

Issue #3(C) Findings: A Full Demolition of the Robert McLaughlin House Does Not Conform to the Policies of the City’s Official Plan

94Mr. Vernon’s alternative argument to the application of local planning policies suggests that, if the City’s OP is found to be applicable, it does not foreclose demolition of the Robert McLaughlin House. This position is premised on Mr. Vernon’s interpretation of section 5.15.3 of the OP which states [emphasis added per Mr. Vernon]:

All development or redevelopment shall have regard for cultural heritage resources and shall, wherever feasible, incorporate these resources into any site plan or design that may be prepared for such development. Alternatively, arrangements may be made to preserve the resource in an appropriate manner off-site.

95Mr. Vernon submits that if the Tribunal is inclined to consider the City’s OP, that it must not only consider the provisions dealing with heritage conservation but also the development potential of the site in the context of the entirety of the OP policies.

96Mr. Vernon argues that a refusal of the demolition permit application would negatively impact the development potential of the site, which runs contrary to the Applicant’s private property interests particularly in light of its location and zoning, where intensification and redevelopment is encouraged. Mr. Vernon emphasizes that the subject lands are designated as Planned Commercial Strip within the OP, that it fronts onto Simcoe Street North, which is designated as "Regional Corridor", and that it is zoned "Planned Strip Commercial" within the City’s Zoning By-law. Mr. Vernon states that this planning framework allows a maximum building height of 13 metres (four storeys) and a density of 85 dwelling units per hectare, being moderately dense compared to residential neighbourhood. He highlights that single-family residential is not a permitted use on the property.

97The Tribunal affirms that no single section of the OP, nor even of the PPS, overrides the other and that the relevant policies and instruments must be considered and balanced in their totality. Referring to the policies within the City of Toronto’s Official Plan in 2575867 Ontario Inc. v. Toronto, the Tribunal stated [emphasis added]:

At the same time that the proposed plan must support intensification and optimization of the subject site, and conform to the City built-form policies related to height, transition, floorplate and setback, the proposed development must also concurrently "conserve" cultural heritage resources in accordance with s.2.6 of the PPS and s.4.2.7 of the Growth Plan. Such heritage conservation principles reach all the way up to the [Planning] Act at s.2(d). ⁴⁵

98The challenge, as expressed in Birchgrove Estates Inc. v. Oakville (Town), is for the Tribunal to determine if the provincial goal of intensification can be achieved while meeting the provincial goal of heritage conservation.⁴⁶ For the reasons expressed under the discussion of the application of the PPS, the Applicant has failed to demonstrate a balancing of these objectives. Further still, there are other policies within the OP that are not considered. In this regard, the Tribunal turns to Mr. Leherbauer’s evidence, deferring to section 2.1.6.2(n) of the City’s OP, which states that the development and intensification of all Corridors shall be in accordance with an approach that ensures cultural heritage resources are preserved and enhanced. The language in this policy provision is again prescriptive rather than permissive. Section 5.15.1, too, of the OP was not addressed by Mr. Vernon. That provision sets out the policy intention to encourage and support the "identification and preservation of heritage resources in Oshawa including listing or designating properties, buildings and other structures which are of cultural heritage value or interest in accordance with the OHA." [Emphasis added.]

99To reiterate, the language of both the PPS and the OP with respect to heritage conservation is mandatory. In reading each document as a whole in order to engage in the inherent balancing exercise, the terms "shall conserve" and "shall be preserved" are a baseline that an application may not fall below. However, in the present instance, the Applicant has failed to produce the evidence necessary to demonstrate how the Robert McLaughlin House might be appropriately conserved. Despite the concession by its own structural engineer that restoration is possible, the Applicant has leapt straight to a request for full demolition, without the necessary conservation plan and/or HIA in support.

100This Tribunal has previously expressed that "the goal or aim of heritage conservation is to retain attributes and landscapes that "’tell the story" by their very existence."⁴⁷ The Tribunal has also stated "the retention and preservation of heritage structures ensures their visibility to tell a story much more effectively than attempting to commemorate through such measures as documents or signing following their demolition."⁴⁸ Accordingly, preservation is the goal, and other conservation options may be weighed on a case-by-case basis.

101While there is insufficient evidence at this juncture to support a full demolition, the Tribunal would encourage the Parties to re-evaluate whether an adaptive re-use of the property is possible. The City has conceded that the Applicant’s former Change of Use Building Permit to legally convert the building into a fourplex would be a form of conservation through adaptive reuse that would be acceptable to the City. It is conceivable, that with an appropriate conservation plan and/or HIA, the Applicant might find support for a partial demolition that would more appropriately conserve the façade of the Robert McLaughlin House in-situ while allowing for adaptive reuse of the balance of the property in a more suitable fashion for modern-day needs. Such an application must of course be evaluated on its own merits, as no such determinations may be made within this Decision.

ORDER

102THE TRIBUNAL ORDERS THAT the Appeal is dismissed and the City of Oshawa’s refusal of the application to demolish the structure at 195 Simcoe Street North, Oshawa remains in force and effect.

"N. Eisazadeh"

N. EISAZADEH

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. 1Ontario Heritage Act, R.S.O. 1990, c. O.18, s.29.
2. 2The qualification of Mr. Hajatri’s opinion evidence is noted to be distinct from the field of architecture, a professional designation which Mr. Hajatri conceded he does not hold. His membership in the Ontario Association of Architects Ontario is as a student member while in the process of obtaining his license through enrollment in the Royal Architectural Institute of Canada’s Architecture Syllabus Diploma in Architecture program.
3. 3This image is extracted from Exhibit 74: Melissa Cole’s Research Report dated November 2017, pg.14, and is stated to be from the Oshawa Archives Collection (West and South facades).
4. 4This image is extracted from Exhibit 74: Melissa Cole’s Research Report dated November 2017, pg. 11 (West façade).
5. 5This image is extracted from Exhibit 81: Photographs taken on April 22, 2019 site visit by Warren Munro (then Commissioner of Economic and Development Services Department) as contained in the email correspondence from Warren Munro to Paul Ralph dated April 22, 2019 (West façade).
6. 6This image is extracted from Exhibit 35.1: Photographs taken on May 30, 2024 site inspection, attached as Appendix A to the RJC Engineering Report dated August 28, 2024, which is further attached as Tab 5 to the Witness Statement of Matthew Kruczkowski dated August 8, 2025, pg. 25 (West façade).
7. 7R. v. Geil, 2013 ONCA 457 ["Geil"].
8. 8Ibid, at para 11.
9. 9Orioncap Management Inc. v. Toronto (City), 2025 CanLii 43235 at para 34 ["Orioncap"].
10. 10Orioncap, supra note 9.
11. 11Oakville (Town) v. Clublink Corporation ULC, 2019 ONCA 826 at para 9 ["Clublink"].
12. 12Ibid.
13. 13Richmond Hill Naturalists v. Corsica Developments Inc., 2013 ONSC 7894 ["Corsica"].
14. 14St. Peter’s Evangelical Lutheran Church v. Ottawa, [1982] 2 S.C.R. ["St. Peter’s Church"].
15. 15Alma Heritage Estates Corporation v. St. Thomas (City), 2007 CanLII 4307 (ONSC) at para 23 ["Alma ONSC"].
16. 16Neufer v. Toronto (City), [2005] O.M.N.B. No. 1261 ["Neufer"].
17. 17Alma Heritage Estates Corp. v. St. Thomas (City), PL060861-Jan-15-2008 (OMB) ["Alma OMB"].
18. 18Incorrectly cited as s.19 within the Appellant’s Closing Arguments.
19. 19Ferron v. Niagara Falls (City), 2021 CanLII 23950 (ON CONRB) ["Ferron"].
20. 20Lambeth Health Organization Inc. v. London (City), 2017 CanLII 11494 (ON CONRB) ["Lambeth"].
21. 21Ibid, at para 64.
22. 22Alma OMB, supra note 17 at pgs.10 and13.
23. 23Clublink, supra note 11.
24. 24Ibid at para 46.
25. 25Ibid at para 47.
26. 26St. Peter’s Church, supra note 14 at pg.624.
27. 27Ibid, at pg.626.
28. 28Ibid, at pg. 627.
29. 29Clublink, supra note 11, at para 23.
30. 30Ibid, at para 26-27.
31. 31Ibid, at paras 52-66.
32. 32Alma ONSC, supra note 15 at paras 23-24.
33. 33Alma OMB, supra note 17 at page 10.
34. 34Ibid, at page 13.
35. 35Neufer, supra note 16 at para 2.
36. 36Lambeth, supra note 20, at para 64.
37. 37Ibid.
38. 38Ganni Properties Inc. v. Caledon (Town), 2025 CanLii 74206 (OLT) at para 39.
39. 39ADMNS Kelvingrove Investment Corp. v. Toronto (City), [2010] O.M.B.D. No. 282 at paras 68-83.
40. 40Ibid, at para 72.
41. 41Ibid, at paras 73-74.
42. 42Ibid, at paras 82-83.
43. 43Orioncap, supra note 9 at paras 33-34.
44. 44Solmar v. Niagara-on-the-lake, 2024 CanLii 101418 at para 50.
45. 452575867 Ontario Inc. v. Toronto (City), 2021 CarswellOnt 13479 at para 84.
46. 46Birchgrove Estates Inc. v. Oakville (Town), 2007 CarswellOnt 760 at para 30.
47. 47Ibid at para 50.
48. 48Losani Homes (1990) Ltd. v. Grimsby (Town), 2022 LNONLT 924 at para 1.