Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 23, 2026
CASE NO(S).: OLT-24-000875
PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18. as amended
Appellant: Raydav Holdings Inc.
Subject: Objection to designation By-law No. 2024-145
Property Address: 7507 Kennedy Road
Municipality/Upper Tier: Markham/York
OLT Case No.: OLT-24-000875
OLT Lead Case No.: OLT-24-000875
OLT Case Name: Raydav Holdings Inc. v. Markham (City)
PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18. as amended
Appellant: Michelle Cohen-Solomon
Subject: Objection to designation By-law No. 2024-145
Property Address: 7507 Kennedy Road
Municipality/Upper Tier: Markham/York
OLT Case No.: OLT-24-000876
OLT Lead Case No.: OLT-24-000875
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: Michelle Cohen-Solomon
Request for: Request for Directions
Heard: May 14, 2025 by Written Hearing
APPEARANCES:
Parties
Counsel
Michelle Cohen-Solomon
Jaclyn P. Solomon
Raydav Holdings Inc.
E. Bruce Solomon
City of Markham
Maggie Cheung-Madar
DECISION DELIVERED BY S. Dixon AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
Background
1This Decision and Order results from a Motion for Directions (“Motion”) filed by Michelle Cohen-Solomon in relation to two appeals filed pursuant to s. 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18 (“OHA”), concerning the passing of Heritage Designation By-law No. 2024-145 (“Heritage By-law”) in the City of Markham (“City”) for lands known municipally as 7507 Kennedy Road (“Subject Lands”).
2Ms. Cohen-Solomon and Raydav Holdings Inc. (“Raydav”; together, “Appellants”) each own 50 per cent of the Subject Lands and each appealed the Heritage By-law on the grounds that the City failed to comply with the legislative procedures required by the OHA, including failing to serve Ms. Cohen-Solomon with a notice of intention to designate the Subject Lands as a property of cultural heritage value or interest (“Notice of Intention”), as required by s. 29(3) of the OHA.
3The Appellants further submit that the Subject Lands do not meet the minimum criteria for determining cultural heritage value or interest, as required by s. 29(1) of the OHA and prescribed by Ontario Regulation (“O. Reg.”) 9/06 as amended by O. Reg. 569/22.
Issues
4In advance of the second case management conference (“CMC”) for these proceedings, and in accordance with the above reasons for appeal, the Parties agreed to the following two issues to be adjudicated at a hearing:
Did the City provide and serve the requisite Notice of Intention to the owners pursuant to s. 29(3) of the OHA to designate the Subject Lands as a property of cultural heritage value or interest? If not, what is the appropriate relief/remedy?
Are the minimum two heritage criteria, as required by s. 29(1) of the OHA and O. Reg. 9/06 as amended by O. Reg. 569/22, satisfied for the Subject Lands and therefore the Subject Lands should be designated?
5At the second CMC, counsel for the City submitted that Issue 1, above, need not be adjudicated as the City had since confirmed with staff that a Notice of Intention had not, in fact, been served on Ms. Cohen-Solomon. Accordingly, the statutory requirements of s. 29(3) of the OHA had not been met in advance of City Council passing the Heritage By-law.
6That admission by the City called into question the status of the Heritage By-law and the appropriateness of a hearing on the merits, leading to the present Motion which seeks direction from the Tribunal as to the effect of the City’s admission on the Appeals, including determining any remedies that the Appellants are entitled to as a result of the same.
Motion Materials
7The following motion materials were submitted to the Tribunal and are hereby marked as exhibits as follows:
- Exhibit 1 – Motion Record of Michelle Cohen-Solomon
o Exhibit 1a – Affidavit of Service of Ashley Xue, sworn April 14, 2025 (served to the City)
o Exhibit 1b – Affidavit of Service of Ashley Xue, sworn April 14, 2025 (served to Raydav)
o Exhibit 1c – Affidavit of Service of Gracynn Beck, sworn April 17, 2025
- Exhibit 2 – Responding Motion Record of Raydav (“Raydav Response”)
o Exhibit 2a – Affidavit of Service of Gracynn Beck, sworn May 1, 2025
Exhibit 3 – Responding Motion Record of the City (“City Response”)
Exhibit 4 – Reply of Michelle Cohen-Solomon to Responding Motion Records (“Reply”)
8Books of Authorities were also submitted by each Party and have been considered by the Tribunal.
Requested Relief
9The Motion generally seeks the following four areas of relief:
That the Appeals be allowed and the Heritage By-law be repealed;
That the City be prohibited from recommencing designation proceedings against the Subject Lands;
That the Subject Lands be removed from the City’s Register of Properties of Cultural Heritage Value or Interest (“City Register”); and
That costs in the amount of $13,334 be awarded to Ms. Cohen-Solomon, to be paid by the City.
10The Raydav Response is similar in form and content to Ms. Cohen-Solomon’s Motion, adopts and relies on the grounds set out in the Motion, and seeks the same or similar relief as outlined above – including additional costs in the amount of $53,763.58 to be paid by the City to Raydav.
11The City Response sets out the City’s reasons why each of the four reliefs being sought by Ms. Cohen-Solomon should not be granted and why the Motion should be dismissed.
12In Ms. Cohen-Solomon’s Reply, she agrees with the Raydav Response and incorporates same into her position.
13While the City has technically only responded to the initial Motion by Ms. Cohen-Solomon, both Appellants are seeking the same or similar relief, have provided the same or similar grounds, and rely on each other’s submissions to support their arguments. The Tribunal is satisfied that, in the absence of a reply by the City to the Raydav Response, the grounds set out in the City Response can be applied to the relief being sought by both Appellants.
REQUESTS PERTAINING TO THE HERITAGE BY-LAW
Request to Allow the Appeals and Repeal the Heritage By-law
Submissions
14The City submits that it is premature for the Tribunal to decide on the Appeals and/or repeal the Heritage By-law until a hearing on the merits has been held, as s. 29(15) of the OHA provides the Tribunal with the power to allow an appeal in whole or in part and repeal or amend a by-law “after holding a hearing.”
15The City further submits that a “proceeding” and a “hearing” are distinct terms and cannot be deemed to be one and the same. In the City’s view, the prior CMCs and the hearing of this Motion do not constitute a “hearing” as contemplated by s. 29 of the OHA. Accordingly, it is the City’s position that the Tribunal does not have jurisdiction to allow the Appeals in whole or in part, nor to repeal the Heritage By-law, until such time as a hearing has been held.
16Ms. Cohen-Solmon submits that the City’s position is incorrect and that the Tribunal does have jurisdiction to order the relief set out by the Appellants. She directed the Tribunal to Rule 21 of the Tribunal’s Rules of Practice and Procedure (“Rules”), which provides that the Tribunal may conduct the whole or any part of a hearing event in writing. “Hearing event” is defined in Rule 1.2 as follows:
“hearing event” means a procedure held by the Tribunal at any stage of a proceeding and includes a motion, case management conference and hearing, whether these are held in the form of an in person hearing, electronic hearing or written hearing, and does not include a cross-examination on an affidavit not held before the Tribunal;
Legislative Authority
17Section 29(1) of the OHA grants the City the authority to designate a property within the City to be of cultural heritage value or interest, as follows:
Designation by municipal by-law
29 (1) The council of a municipality may, by by-law, designate a property within the municipality to be of cultural heritage value or interest if,
(a) where criteria for determining whether property is of cultural heritage value or interest have been prescribed, the property meets the prescribed criteria; and
(b) the designation is made in accordance with the process set out in this section.
18Section 29(11) of the OHA provides that any person who objects to a heritage designation by-law may appeal to the Tribunal by giving the Tribunal and the clerk of the municipality a notice of appeal setting out the objection to the by-law and the reasons in support of the objection. The Appeals currently before the Tribunal were each filed pursuant to s. 29(11) of the OHA.
19The OHA sets out the Tribunal’s responsibilities and authority once notice of appeal to the Tribunal is given, including the following:
If notice of appeal
(13) If a notice of appeal is given within the time period specified in subsection (11), the Tribunal shall hold a hearing and, before holding the hearing, shall give notice of the hearing to such persons or bodies and in such manner as the Tribunal may determine.
Powers of Tribunal
(15) After holding the hearing, the Tribunal shall,
(a) dismiss the appeal; or
(b) allow the appeal in whole or in part and,
(i) repeal the by-law,
(ii) amend the by-law in such manner as the Tribunal may determine,
(iii) direct the council of the municipality to repeal the by-law, or
(iv) direct the council of the municipality to amend the by-law in accordance with the Tribunal’s order.
Dismissal without hearing of appeal
(16) Despite the Statutory Powers Procedure Act and subsections (13) and (15), the Tribunal may, on its own motion or on the motion of any party, dismiss all or part of the appeal without holding a hearing on the appeal if,
(a) the Tribunal is of the opinion that,
(i) the reasons set out in the notice of appeal do not disclose any apparent ground upon which the Tribunal could allow all or part of the appeal, or
(ii) the appeal is not made in good faith, is frivolous or vexatious, or is made only for the purpose of delay;
(b) the appellant has not provided written reasons in support of the objection to the by-law;
(c) the appellant has not paid the fee charged by the Tribunal; or
(d) the appellant has not responded to a request by the Tribunal for further information within the time specified by the Tribunal.
Analysis and Findings
20While hearing events may occur in writing, and the Motion currently before the Tribunal is indeed a written hearing event, the Tribunal does not find that a motion and a hearing can be construed as one and the same. The Rules clearly differentiate a motion, a CMC, and a hearing as three separate hearing events.
21Turning to the OHA, the distinction between a motion and a hearing is further recognised in s. 29(16), which states that “[…] the Tribunal may, on its own motion or on the motion of any party, dismiss all or part of the appeal without holding a hearing on the appeal […].” Again, the differentiation between a “motion” and a “hearing” supports the finding that a motion is not a hearing.
22The Tribunal’s powers to dismiss an appeal or allow an appeal in whole or in part and repeal or amend a heritage designation by-law, given pursuant to s. 29(15) of the OHA, are only granted after a hearing – not a motion – has been held.
23Further, the Tribunal is required under s. 29(13) of the OHA to hold a hearing once a notice of appeal is given:
If notice of appeal
(13) If a notice of appeal is given within the time period specified in subsection (11), the Tribunal shall hold a hearing and, before holding the hearing, shall give notice of the hearing to such persons or bodies and in such manner as the Tribunal may determine.
(emphasis added)
24The use of the word “shall” in s. 29(13) invokes a mandatory requirement by imperative meaning. Read in the full context of s. 29, the Tribunal must hold a hearing prior to exercising its powers pursuant to s. 29(15).
25Accordingly, all relief from the Parties seeking a decision by the Tribunal to allow the appeal, allow the appeal in part, dismiss the appeal, and/or repeal the Heritage By-law prior to a hearing on the merits is denied and the Appeals remain active.
Requests to Remove the Subject Lands from the City Register and Prohibit the City from Recommencing Designation Proceedings
Submissions
26The Appellants have asked the Tribunal, in the exercise of its discretion, to order that the City cannot restart designation proceedings against the Subject Lands and that the Subject Lands be removed from the City Register.
27The City submits that those requested reliefs are improper as they require the Tribunal to override the provisions of s. 27 of the OHA, to replace the decision-making powers of City Council, and to consider new issues beyond the scope of those articulated in the notices of appeal filed pursuant to s. 29(11) of the OHA.
Legislative Authority
28Section 27(1) of the OHA states that the clerk of a municipality shall keep a register of property situated in the municipality that is of cultural heritage value or interest.
29Section 27(2) of the OHA requires that the register shall list all property that has been designated by the municipality. Section 27(3) provides that, in addition to designated properties being listed in the register, the register may include property that has not been designated where the property meets prescribed heritage criteria.
30Section 27(7) of the OHA provides that an owner of a property who objects to a property being included in the register under s. 27(3) shall serve a notice of objection on the clerk of the municipality.
31Where a notice of objection has been served, s. 27(8) of the OHA provides the following:
Decision of council
(8) If a notice of objection has been served under subsection (7), the council of the municipality shall,
(a) consider the notice and make a decision as to whether the property should continue to be included in the register or whether it should be removed; and
(b) provide notice of the council’s decision to the owner of the property, in such form as the council considers proper, within 90 days after the decision.
32Sections 27(14), (15), and (16) set out requirements for when the council of a municipality shall remove a non-designated property from a heritage register. Once removed from the register, ss. 27(18) to (21) set out cases where the council of the municipality may not include the property again in the register for a period of five years after the date of removal.
Analysis and Findings
33Unlike s. 29 of the OHA, which provides explicit authority to appeal a heritage designation by-law, s. 27 does not include any rights of appeal to the Tribunal in respect of a property being listed on a municipal heritage register. Objections pursuant to s. 27(7) are not served on the Tribunal, and it is only the council of the municipality that is afforded the responsibility of considering the objection, making a decision in respect of same, providing notice of council’s decision in such form as council considers proper, and removing a property from the heritage register when legislated to do so.
34While Raydav’s notice of appeal does include an assertion that the City failed to fully consider Raydav’s objections to the Subject Lands being listed on the City Register prior to adopting the Heritage By-law, the Tribunal does not find that such an assertion is a proper reason for appeal of a heritage designation by-law pursuant to s. 29(11) of the OHA. The manner in which the City considers an objection (to either a proposed listing on the City Register or a proposed designation by-law) and exercises its discretion is not prescribed by the OHA and is not subject to review by the Tribunal.
35The relief requesting that the Tribunal remove the Subject Lands from the City Register and prohibit the City from recommencing designation proceedings against the Subject Lands is therefore denied.
The Validity of the Heritage By-Law
36Central to the Appellants’ arguments in support of their requested relief is the submission that the City’s failure to serve Ms. Cohen-Solomon with the requisite Notice of Intention renders the Heritage By-law invalid, void, and of no force and effect.
37Notwithstanding the above determinations by the Tribunal that the OHA limits the Tribunal’s authority to allow the Appeals and repeal or amend the Heritage By-law until after a hearing on the merits has been held, the Tribunal cannot ignore the fundamental underlying question of law and fact posed by the Appellants:
- Did the City have the authority to designate the Subject Lands to be of cultural heritage value or interest without serving notice on Ms. Cohen-Solomon?
38Based on the evidence before the Tribunal in this Motion, the Tribunal finds that it did not.
Legislative Authority
39The Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6 (“OLTA”) authorises the Tribunal to make determinations on all questions of law and fact on matters within its jurisdiction, to make orders or give directions as may be necessary or incidental to the exercise of its powers, and to adopt any practices and procedures that are available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings:
Exclusive jurisdiction
8 (1) The Tribunal has exclusive jurisdiction in respect of all matters in which jurisdiction is conferred on it by this or any other Act.
Same
(2) The Tribunal has authority to hear and determine all questions of law and fact with respect to all matters within its jurisdiction, unless limited by this or any other Act.
Orders
9 (1) The Tribunal has authority to make orders or give directions as may be necessary or incidental to the exercise of the powers conferred on the Tribunal under this or any other Act.
Relief
(4) Unless another Act specifies otherwise, the Tribunal may, as it considers to be appropriate,
(a) make an order granting all or part of the relief applied for; or
(b) make an order granting relief that is additional to or different from the relief applied for.
Practices and procedures
12 (1) The Tribunal shall dispose of proceedings in accordance with any practices and procedures that are required under this or any other Act, subject to subsection (3).
Fair, just and expeditious resolution
(2) The Tribunal shall, in respect of each proceeding, adopt any practices and procedures provided for in the rules or that are otherwise available to the Tribunal that, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the proceedings.
40The OHA is squarely within the Tribunal’s jurisdiction and therefore the Tribunal is authorised to determine questions of law and fact with respect to OHA matters, except where the OHA limits the Tribunal’s authority, as stipulated by s. 8(2) of the OLTA.
41As previously determined, ss. 29(13) and (15) of the OHA limit the Tribunal’s authority to determine the merits of an appeal filed pursuant to s. 29(11) and to dismiss an appeal, allow an appeal in whole or in part, repeal or amend a heritage designation by-law, or direct the council of a municipality to repeal or amend a heritage designation by-law until after a hearing has been held. As no hearing has been held in these proceedings, the Tribunal cannot make a determination on the merits of the Appeals.
42Notwithstanding that finding, the Tribunal does not find that the limitations set by the OHA extend to the Tribunal’s authority to determine a question of law and fact pertaining to whether the City failed to meet a pre-condition to the passing of a heritage designation by-law, particularly where there is an admission by the City that it did not meet one of the legislative prerequisites.
43The City, citing WAM Montez C & W Inc. v. Toronto (City), 2019 CanLII 106918 (ON CONRB) (“WAM v. Toronto”), Trothen v. Sarnia (City), 2016 CanLII 29998 (ON CONRB) (“Trothen v. Sarnia”), and Clark v. Oshawa (City), 2022 CanLII 21217 (ON LT) (“Clark v. Oshawa”), submits that the former Conservation Review Board (“CRB”), which has since been amalgamated into and continued as the Tribunal, held that the CRB had no authority to consider the quality of a municipality’s process prior to the issuance of a Notice of Intention and the Tribunal therefore cannot exercise a quasi-judicial review of the City’s actions prior to the Appeals nor cure prescriptive procedural defects on the part of a party, having no power to adjudge a municipality’s actions leading to the issuance of a Notice of Intention.
44It is important to note that both WAM v. Toronto and Trothen v. Sarnia are decisions of the former CRB. Clark v. Oshawa, while a decision of the Tribunal, was subject to the OHA transition provisions of O. Reg. 385/21, which provide that an OHA matter or proceeding commenced before July 1, 2021, shall be continued and disposed of under the OHA as it read on June 30, 2021. Accordingly, as was found by the Tribunal at paragraph 27 of Clark v. Oshawa, the Tribunal only had the jurisdiction of the former CRB in that matter.
45The Tribunal does not dispute that the case law cited by the City makes clear that, under the previous iteration of the OHA and the previous jurisdiction of the CRB and Tribunal, the CRB did not investigate the decision-making process of municipalities or the method by which municipalities exercise discretion given to them under the OHA (para. 44, Trothen v. Sarnia). Rather, decisions of the former CRB and Tribunal were restricted to a consideration of the heritage merits of a property. As stated by the Tribunal in Clark v. Oshawa:
32The issue of the jurisdiction of the former CRB is well-settled law as outlined in the caselaw cited above. The Tribunal, having only the jurisdiction of the former CRB in this matter, has limited authority to act and a highly focused jurisdiction on evaluating whether or not a property has [cultural heritage value or interest].
46The function of the former CRB (and Tribunal, where subject to O. Reg. 385/21) was to determine whether a property should be designated based on the heritage merits of the property and to make a recommendation to the municipal council based on that determination. Council was then required by the previous iteration of the OHA to consider the CRB’s recommendation, but not necessarily to follow it.
47The previous iteration of the OHA does not apply to the case at hand, and the Tribunal does not find that the current legislative regime confines the Tribunal to the same jurisdictional limits as the former CRB. For example, the Tribunal no longer makes heritage designation recommendations to municipal councils based on the heritage merits of a property. Instead, the OHA charges the Tribunal with making findings on appeals of heritage by-laws once they are passed, including the authority to direct, rather than recommend, municipal councils to amend or repeal a heritage by-law (which is quite converse to the former relationship between the CRB and municipalities).
48Even still, as was found in WAM v. Toronto, the former CRB had jurisdiction under the OHA to consider a question as to whether a pre-condition to the commencement of a heritage designation proceeding had been met:
14In practice, the Review Board does consider whether the pre-conditions to its exercise of jurisdiction have been met. But this consideration is limited to asking whether there is a technical defect in the commencement of a proceeding. For example, the Review Board queries whether notice of intention to designate was published in a local newspaper and served on an owner and the Ontario Heritage Trust, whether the notice of objection was filed within the statutory limitation period, and so on. This practice is a simple binary, “yes” / “no” exercise, and does not delve into an assessment of the relative quality of a municipality’s approach to satisfying a pre-condition.
24In summary, the Review Board finds that, while it has jurisdiction to consider whether the pre-conditions to the commencement of a proceeding have been met, that exercise does not extend to an investigation into, or a qualitative assessment of, the process followed by the City in meeting those pre-conditions.
(emphasis added)
49Applied to the current legislative regime, the Tribunal finds that it is still limited by the OHA from delving into an assessment of the relative quality of the City’s approach to satisfying a legislative prerequisite, but not from assessing whether the City has failed to meet a legislative prerequisite before commencing a designation proceeding.
50Turning to the language of the current OHA, designation by-laws may only be passed pursuant to s. 29(1) of the OHA if (a) the property meets the prescribed criteria, and (b) the designation is made in accordance with the process set out in s. 29.
51Section 29(11) of the OHA states that, “Any person who objects to the by-law may appeal to the Tribunal by […] setting out the objection to the by-law and the reasons in support of the objection […].” Those reasons are not limited by the OHA to only an objection of the prescribed criteria used to determine cultural heritage value or interest. Rather, the objection to be set out in a notice of appeal is an objection “to the by-law”, which in turn may only be passed if the heritage designation is made in accordance with the prescribed process. The Tribunal therefore finds that, logically, an objection to the by-law may include an objection to the application of the prescribed criteria, an objection to the fulfilment of the prescribed process (but not the perceived quality of said fulfilment), or an objection to both.
Analysis and Findings
52In assessing only the question as to whether the City had the authority to designate the Subject Lands to be of cultural heritage value or interest without serving notice on Ms. Cohen-Solomon, the Tribunal finds that it did not.
53Section 29(1) of the OHA sets out the following:
Designation by municipal by-law
29 (1) The council of a municipality may, by by-law, designate a property within the municipality to be of cultural heritage value or interest if,
(a) where criteria for determining whether property is of cultural heritage value or interest have been prescribed, the property meets the prescribed criteria; and
(b) the designation is made in accordance with the process set out in this section.
(emphasis added)
54The City may only designate a property to be of cultural heritage value or interest if the property meets the prescribed criteria of O. Reg. 9/06 and the designation is made in accordance with the process set out in s. 29.
55That process includes a requirement for notice that shall be served on the owner of the property and on the Ontario Heritage Trust (“Trust”), in accordance with ss. 29(1.1) and (3):
Notice required
(1.1) Subject to subsections (1.2) and (2), if the council of a municipality intends to designate a property within the municipality to be of cultural heritage value or interest, it shall cause notice of intention to designate the property to be given by the clerk of the municipality in accordance with subsection (3).
Notice of intention
(3) Notice of intention to designate under subsection (1) shall be,
(a) served on the owner of the property and on the Trust; and
(b) published in a newspaper having general circulation in the municipality.
(emphasis added)
56The City is only authorised by the OHA to designate a property within the City to be of cultural heritage value or interest if it has caused Notice of Intention to be served on the owner of the property and on the Trust. Without first serving a Notice of Intention on both the owner and the Trust, the City does not have authority to designate, by by-law, a property within the City to be of cultural heritage value or interest.
57In addition to the City’s admission at the second CMC for these proceedings that it failed to serve Notice of Intention on Ms. Cohen-Solomon, as described in the Tribunal’s Decision and Order issued on March 24, 2025 (p. 53, Exhibit 1), the City further admits at paragraph 6 of the City Response that the City failed to serve the Notice of Intention on not only Ms. Cohen-Solomon, but also on the Trust:
- With the exception of serving the [Notice of Intention] on Appellant Cohen-Solomon and the Ontario Heritage Trust as required under subsections 29(1.1) and 29(3) of the OHA, the City submits that it has met all the requirements of section 29 of the OHA in passing By-law 2024-145 […]
(p. 7, Exhibit 3, emphasis added)
58Included in the City Response is the Affidavit of Evan Manning. Mr. Manning is the Senior Heritage Planner with the City assigned to review and process the heritage designation of the Subject Lands. At paragraph 23 of Mr. Manning’s Affidavit, he confirms the City’s submission that Notice of Intention was not served on either Ms. Cohen-Solomon or the Trust prior to the passage of the Heritage By-law:
- On or about February 14, 2025, upon further confirmation with City staff, I advised Ms. Cheung-Madar that the City had inadvertently failed to serve the [Notice of Intention] on Appellant Cohen-Solomon and on the Ontario Heritage Trust prior to the passage of Designation By-law 2024-145.
(p. 24, Exhibit 3, emphasis added)
59The City has conceded that the Notice of Intention was not served on Ms. Cohen-Solomon or the Trust as required by the OHA, and has provided evidence to the Tribunal confirming the same. There can be no other finding of the Tribunal on that fact.
60By failing to serve a Notice of Intention on the owner of the Subject Lands and on the Trust before designating the Subject Lands to be of cultural heritage value or interest, the Tribunal finds that the City has acted outside of its legislated authority pursuant to s. 29(1) of the OHA.
61Notwithstanding the Tribunal’s findings in that regard, the Tribunal does not have jurisdiction to dispense with the mandatory statutory requirements of the OHA. The Tribunal is therefore still bound by the legislation to hold a hearing prior to deciding on the Appeals and the appropriate relief/remedy in respect to the Tribunal’s findings.
REQUESTS FOR COSTS
Submissions
62The Appellants submit that the City knew or ought to have known that there were two owners of the Subject Lands prior to passing the Heritage By-law. In their submissions, the City’s conduct in proceeding with the Heritage By-law despite failing to serve Ms. Cohen-Solomon with a Notice of Intention and further not immediately acknowledging its omission and repealing the Heritage By-law prior to or immediately after the Appeals were filed is an abuse of process and constitutes egregious, unfair, and unreasonable bad faith conduct.
63The Appellants further submit that the City filed multiple affidavits with the Tribunal in response to the Appeals, as part of the municipal record, that contain incorrect information and false statements about the accuracy and content of the affidavits, namely that Notice of Intention was served on the legal owners of the Subject Lands and the Trust when in fact it was not.
64The Appellants claim that the City’s conduct has been misleading to the Tribunal and prejudicial to the Appellants, who have had to incur substantial additional and otherwise unnecessary costs.
65The City submits that, in accordance with Rules 23.9, “The Tribunal may only order costs against a party if the conduct or course of conduct of a party has been unreasonable, frivolous or vexatious or if the party has acted in bad faith.” Absent such conduct, there can be no award for costs.
66The City further submits that costs are rarely awarded in Tribunal proceedings and can only be awarded where the conduct of a party is so improper that it cannot be ignored. The City cited multiple cases that are familiar to the Tribunal and have been routinely relied upon by the Tribunal and its predecessors in determining whether to award or deny a request for costs. In summary:
To be unreasonable, a party’s conduct must be found to be irrational or not in accordance with good sense.
To be frivolous, a party’s conduct must be characterised by a lack of seriousness.
To be vexatious, a party’s conduct must be characterised as being instituted without sufficient grounds for the purpose of causing trouble or annoyance to another party.
67The “reasonable person” test, set out in Midland (Town) Zoning By-law 94-50, Re, 1995 CarswellOnt 5227 (OMBD) at paragraph 37 and referenced in numerous decisions since, is the test commonly used by the Tribunal:
[...] would a reasonable person, having looked at all of the circumstances of the case, the conduct or course of conduct of a party proven at the hearing, and the extent of his or her familiarity with the Board's procedure, exclaim "that's not right; that's not fair; that person ought to be obligated to another in some way for that kind of conduct”.
68The City submits that its conduct surrounding the City’s realised failure to serve Notice of Intention to Ms. Cohen-Solomon was not at all improper. Rather, the City took the necessary steps to review the Appellants’ allegation and upon discovery and confirmation of the error advised the Tribunal and the Appellants at the second CMC, prior to the approval of issues or the scheduling of a hearing. It is the City’s position that acknowledging the error will lead to a more focused and efficient hearing, but in no way prejudice the Appellants from advancing their appeals.
Analysis and Findings
69The Tribunal does not find that the City has acted egregiously, unreasonably, or in bad faith, nor that the City’s conduct in these proceedings can be characterised as unreasonable, frivolous or vexatious.
70The City made a clerical error in fulfilling its duties prior to passing the Heritage By-law. Had the City recognised its error prior to the appeal process commencing, it may have afforded itself the opportunity to take the appropriate steps to remedy the situation. However, the Tribunal is not convinced that such an action by the City (i.e., providing proper notice to both landowners prior to passing the Heritage By-law) would have prevented objections to the Heritage By-law or appeals from being filed. As evidenced by the proposed second issue put forth by the Parties at the second CMC (see paragraph [4], above), the City believes the Subject Lands meet the minimum regulated criteria to warrant designation as a property of cultural heritage value or interest and the Appellants do not.
71In a letter dated July 25, 2024 confirming that the Heritage By-law had been passed by City Council the week prior, the City recognised Ms. Cohen-Solomon as an owner of the Subject Lands (p. 33, Exhibit 1). The Appeals were filed approximately 26 days later, on or about August 20, 2024.
72The City was definitively aware that Ms. Cohen-Solomon was an owner of the Subject Lands as of July 25, 2024. However, the Tribunal is not convinced that such awareness proves the City must have also been aware that they did not serve Ms. Cohen-Solomon with a Notice of Intention. The earliest documentation before the Tribunal clearly alleging the City did not serve Ms. Cohen-Solomon with notice is in the August 20, 2024 appeal forms filed with the Tribunal, which plainly state, as a reason for appeal, that the City did not serve the other 50 per cent owner of the Subject Lands with the Notice of Intention as required by s. 29(3) of the OHA.
73The Appellants submit that Raydav, in responding to the Notice of Intention, made reasonable efforts to alert the City to the fact that Raydav was only one of the owners of the Subject Lands on June 6, 2024, in its notice of objection to the proposed heritage designation. To that end, the Raydav Response includes the sworn affidavit of Gracynn Beck, which includes the following statement:
- The Notice of Objection alerted Markham to the fact that Raydav was “one of the owners” of the Property, but Marham took no action in this regard.
(p. 20, Exhibit 2)
74The Tribunal finds the Appellants’ submissions in that regard to be mischaracterised. Despite Ms. Beck’s sworn statement, the quoted words “one of the owners” do not exist in Raydav’s notice of objection nor the attachments thereto. Rather, the notice of objection states the following:
- Notice to the Owners of the Property and Publication of the Notice as required by the mandatory provisions of Sections 29(3), 29(4), 29(4.1), 29(5) and Section 67: The City has failed to comply with these express and mandatory provisions of the OHA in regard to service and publication of notice of the [Notice of Intention] to the owners of the Property as follows:
g. The owners of the Property have not been served with the [Notice of Intention] and/or properly served with the [Notice of Intention] as required by the mandatory provisions of Section 29(3)a of the OHA;
(p. 190, Municipal Record, original emphasis)
75Attached to the notice of objection is a letter from Joseph Virgilio, counsel to Raydav, which states the following:
Please be advised that we represent [Raydav] in regard to its interests as an owner of the Property and the commercial building thereon, and we are responding to Mr. Manning’s correspondence dated April 8, 2024 (“the Markham Correspondence”).
(p. 202, Municipal Record, original emphasis)
76There are no other instances in the notice of objection or attachments thereto that speak to ownership of the Subject Lands. While Raydav was not obligated to inform the City of its error (the City must conduct its own due diligence prior to issuing a Notice of Intention), the Tribunal does not find that the above references amount to an alert by Raydav that they were only “one of the owners” of the Subject Lands or that the City failed to provide the other owner with proper notice.
77Accordingly, the earliest written record before the Tribunal clearly alleging that the City had not served a Notice of Intention on Ms. Cohen-Solomon is when the Appeals were filed.
78The Tribunal does not find it unreasonable that, upon commencement of the appeal process, the City ceased to take further action with respect to its designation proceedings and instead began preparing for a hearing. That preparation included assessing the reasons for appeal, which ultimately led the City to confirm, prior to the finalisation of a procedural order and issues list, that it had failed to serve a Notice of Intention on Ms. Cohen-Solomon. The Tribunal accepts the City’s submission that its admission at the second CMC was an act of good faith to try and narrow the issues in advance of a hearing.
79As to the alleged falsification of sworn affidavits, the Tribunal takes such submissions seriously. The signing of affidavits is not simply an administrative exercise. It is the expectation of this Tribunal that all persons swearing an affidavit, making solemn declarations and/or certifying facts do so with the utmost integrity and due diligence.
80Notwithstanding that expectation, the Tribunal recognises that human error does occur. Such errors necessitate scrutiny by the Tribunal into the accuracy and reliability of the information provided by an affiant and may very well, depending on the extent of the error, cast doubt on the evidence provided and affect the weighting of such evidence by the Tribunal.
81Alleging that information has been falsified by an affiant carries an air of intentional misconduct. The Tribunal finds there to be no such occurrence by any affiant in this matter. The City failed to perform adequate due diligence prior to serving its Notice of Intention for the Subject Lands. That failure cascaded to subsequent administrative processes, including the filing of a municipal record with the Tribunal, that resulted in additional errors. The Tribunal does not find those errors to be so egregious as to warrant costs on the basis of conduct that is unreasonable, frivolous or vexatious, or that suggests the City has acted in bad faith.
82The Tribunal therefore denies all requests for costs and orders that the Parties shall bear their own costs for this Motion and for all prior procedural matters related to these proceedings.
CONCLUSIONS
83Based on the evidence before the Tribunal in this Motion, the Tribunal finds that the City acted without authority when passing By-law 2024-145 by failing to fulfil a legislative prerequisite, as required by s. 29(1) of the OHA, prior to designating the Subject Lands to be of cultural heritage value or interest.
84Given the limited jurisdictional powers of the Tribunal to decide on an appeal pursuant to s. 29(11) without first holding a hearing, the Tribunal directs the Parties to confer on proposed next steps in these proceedings and to provide the Tribunal with an update respecting same within 60 days of the issuance of this Order.
85In all other respects, the Motion is dismissed.
ORDER
86THE TRIBUNAL ORDERS THAT the Motion is dismissed.
87THE TRIBUNAL ORDERS THAT the Parties are to provide the Tribunal with a status update outlining proposed next steps in these proceedings by no later than 60 days following the issuance of this order.
88This Member remains seized.
“S. Dixon”
s. dixon
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.