Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
May 26, 2026
CASE NO(S).:
OLT-24-000542
PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18.
Appellant:
Irena Poklewska-Koziell and Lech Poklewski-Koziell
Appellant:
Malgorzata (Margo) Poklewska-Koziell
Subject:
Heritage – By-Law 2024-172
Description:
Objection to passing of By-law to designate a heritage property
Reference Number:
By-Law 2024-172
Property Address:
888 Montreal Street
Municipality/UT:
Kingston/Frontenac
OLT Case No:
OLT-24-000542
OLT Lead Case No:
OLT-24-000542
OLT Case Name:
Poklewski-Koziell v. Kingston (City)
Heard:
July 17 and 18, 2025 by Video Hearing July 25, 29 and August 1, 2025 in Writing
APPEARANCES:
Parties
Counsel
Lech Poklewski-Koziell
Ningjing (Natalie) Zhang
Malgorzata Poklewska-Koziell
Ningjing (Natalie) Zhang
City of Kingston
Andrew Reeson
DECISION DELIVERED BY S. DIXON AND ORDER OF THE TRIBUNAL
Link to Order
INTRODUCTION
Background
1This Decision and Order results from a hearing on the merits of appeals filed by (1) Lech Poklewski-Koziell and (2) Malgorzata Poklewska-Koziell pursuant to s. 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended (“OHA”), concerning the passing of Heritage Designation By-law No. 2024-172 in the City of Kingston (“City”) for lands known municipally as 888 Montreal Street (“Subject Property”).
2At a prior case management conference, it was determined that only Ms. Poklewska-Koziell’s appeal form contained sufficient and legitimate grounds for appeal of the Heritage Designation By-law. At the opening of the hearing, counsel for the City noted that Mr. Poklewski-Koziell’s appeal remained active despite the lack of any legitimate issues to be heard by the Tribunal.
3That concern was not refuted by counsel for the Appellants and the hearing proceeded with arguments and evidence submitted on behalf of only Ms. Poklewska-Koziell and the City. Accordingly, the appeal by Mr. Poklewski-Koziell is dismissed on the basis that no legitimate reasons for appeal were raised and no evidence was proffered by or on his behalf.
Issues
4Section 29(1) of the OHA authorises a municipality to designate, by by-law, a property within the municipality to be of cultural heritage value or interest if the property meets the prescribed criteria for determining the same and if the designation is made in accordance with the process set out in s. 29 of the OHA.
5The prescribed criteria are listed under s. 1(2) of Ontario Regulation (“O. Reg.”) 9/06, as amended by O. Reg. 569/22.
6Section 2(3) of O. Reg. 9/06 states that a property may be designated under s. 29 of the OHA if it meets two or more of the nine criteria set out in s. 1(2) of O. Reg. 9/06.
7The City contends that the Subject Property meets the following three heritage criteria:
The property has design value or physical value because it is a rare, unique, representative or early example of a style, type, expression, material or construction method.
The property has design value or physical value because it displays a high degree of craftsmanship or artistic merit.
The property has contextual value because it is physically, functionally, visually or historically linked to its surroundings.
8The Appellant contends that the Subject Property does not meet any of the above three criteria and therefore should not be designated as a property of cultural heritage value or interest.
Witnesses
Appellant Witnesses
9The Appellant called Julie Harris, a Principal at the heritage consulting firm Contentworks Inc. Ms. Harris is a Professional Member of the Canadian Association of Heritage Professionals with approximately 38 years of experience developing heritage management plans and conducting heritage evaluations. She is a former part-time Member of the Conservation Review Board and has been previously qualified as an expert witness before the Tribunal and its predecessors. She was qualified by the Tribunal at this hearing as an expert in Heritage Planning.
10The Appellant also called Chris Warden, a Principal and Senior Conservation Architect at Trace Architectures Inc. Mr. Warden is a Professional Member of the Canadian Association of Heritage Professionals and a licensed architect with the Ontario Association of Architects. He has approximately 20 years of experience in architecture, 17 of which have focused on heritage conservation, evaluations, and rehabilitation. He was qualified by the Tribunal as an expert in Architecture with specialised experience in Heritage Conservation.
City Witnesses
11The City called Joel Konrad, the Manager of Heritage Planning at the City. Mr. Konrad is a Professional Member of the Canadian Association of Heritage Professionals with approximately 12 years of experience in Heritage Planning, including conducting heritage evaluations. He was qualified by the Tribunal as an expert in Heritage Planning.
12The City also called Kayla Jonas Galvin, the Director of Heritage Operations at Archaeological Research Associates Ltd. Ms. Jonas Galvin is a Professional Member and past President of the Canadian Association of Heritage Professionals and a Registered Professional Planner. She has approximately 17 years of experience in Heritage Planning, including conducting heritage evaluations. She was qualified by the Tribunal as an expert in Heritage Planning.
Exhibits
13Three exhibits were marked at the hearing:
Exhibit 1 – Joint Document Book (containing all expert witness statements);
Exhibit 2 – Complete Table 11 from Joint Document Book; and
Exhibit 3 – Agreed Statement of Facts, June 30, 2025.
ANALYSIS AND FINDINGS
Existing Context
The Subject Property
14The Subject Property is an irregular lot approximately 0.47 hectares (1.16 acres) in size. Situated to the northwest of the intersection of Montreal and Cassidy Streets, the Subject Property has a narrow frontage on Montreal Street and driveway access to both Montreal and Cassidy Streets. The house on the Subject Property is set back approximately 42 metres from Montreal Street.
15According to the Agreed Statement of Facts (Exhibit 3), the Subject Property was created prior to 1878 and was once part of a farm. The house on the Subject Property was constructed between 1860 and 1880. Architecturally, the house is an example of a 1.5-storey vernacular “Ontario Cottage” with the following existing features:
wood frame construction;
light yellow vinyl siding installed over painted wood siding;
side gable roof;
symmetrical front façade with central entranceway flanked by windows;
central steep-pitch gable and tall Gothic arched window opening;
two red brick corbelled chimneys (one at each gable end);
rebuilt verandah supported by four round columns; and
vergeboard/bargeboard on the roofline, eaves, and central gable.
16Four additional structures are attached in sequence to the rear of the house. A further small, detached structure is located in the northwest corner of the Subject Property.
Surrounding Area
17To the immediate north of the Subject Property is a 1.5-storey commercial strip mall. To the immediate west is a four-storey apartment building. To the immediate southeast of the Subject Property, at the northwest corner of Montreal and Cassidy Streets, is a stone rowhouse built circa 1854 for the Grand Trunk Railway (which arrived in the 1850s) that has been designated since 1976 as a property of cultural heritage value or interest under Part IV of the OHA.
18A wide variety of building types, styles, sizes, and uses are found nearby, including one- and two-storey houses and commercial buildings along Montreal Street, multi-storey apartment buildings to the east of Montreal Street, and several properties formerly associated with the Grand Trunk Railway, including the former Canadian National Railway Station (south of the stone rowhouse), which is listed on the Canadian Register of Historic Places and protected under the Heritage Railway Stations Protection Act.
Ontario Heritage Toolkit
19Included in Exhibit 1 is an excerpt from the Ontario Heritage Tool Kit – Heritage Property Evaluation: A Guide to Identifying, Researching and Evaluating Heritage Properties in Ontario Communities (2025) (“Tool Kit”).
20The Tool Kit is a guide “designed to help identify and evaluate the cultural heritage value or interest of properties” and provide “guidance in evaluating properties using the criteria prescribed in Ontario Regulation 9/06 of the Ontario Heritage Act” (p. 7, Exhibit 1). Section 5.6 of the Tool Kit provides specific guidance on how to apply each of the nine criteria listed in O. Reg. 9/06.
21The Tool Kit does not form part of the OHA nor the regulations thereto and is therefore not determinative. However, it was referred to by the expert witnesses throughout the hearing in support of their respective opinions and has assisted with determining the issues at hand.
Reference Literature
22Multiple works by various authors were referenced in support of the professional opinions heard by the Tribunal, primarily with respect to the Ontario Cottage architectural style and Gothic architecture in Ontario. The works will not be listed here for the sake of brevity but are excerpted and cited in Exhibit 1.
23The most frequently cited reference at the hearing was an illustration of “A Cheap Farm House” from the November 15, 1864 publication of The Canada Farmer1, found on pages 171 and 378 of Exhibit 1 (“Canada Farmer Illustration”).
24The illustration depicts a wood frame Ontario Cottage with a side gable roof, symmetrical front façade, central entranceway flanked by windows, central steep-pitch gable with an arched window opening, chimneys at each gable end, and decorative bargeboard. The accompanying article describes designs for a cheap farmhouse planned to accommodate a large family, with detailed construction plans and techniques. The article also notes the following with respect to architectural details:
The appearance of the house shown in the above engravings might be considerably improved by the addition of a verandah and Venetian blinds. […] The out-buildings should also be made to correspond with the dwelling in point of style, especially in the characteristic feature of the high-pitch roof. The effect of a building greatly depends upon these and other attendant circumstances and accompaniments. They may seem, some of them at least, of small importance, but they ought not to be overlooked by any means.
It is rather by attention to the aggregate of inexpensive details, than by large outlay on one particular object, that the comfort and attractiveness of a country house are secured. We are persuaded that a little more regard for what many consider trifles unworthy of notice, would yield a large return of real enjoyment and satisfaction.
(p. 378, Exhibit 1)
25The following publication by Jennifer McKendry was also referenced extensively throughout the hearing:
- McKendry, J. 2016, A Discussion of Kingston and Area’s Historic Small Houses Known as “The Ontario Cottage” Type in the Journal of the Society for the Study of Architecture in Canada [1998-] 41/2 (“McKendry Paper”).
26Dr. McKendry recognises three different substyles of the Ontario Cottage in the McKendry Paper: (1) the hipped-roof Ontario Cottage; (2) the gable-roof Ontario Cottage; and (3) the gable-roof Ontario Cottage with a front central gable or peak interrupting the eaves.
27All three Heritage Planners agree that Dr. McKendry is an authoritative source on Kingston architecture and architectural styles. Ms. Harris specifically conceded that Dr. McKendry “knows more about the history of Kingston’s architecture than I do,” but proffered that Dr. McKendry’s scholarly analysis of Ontario Cottages is not a heritage evaluation for the purposes of assessing the O. Reg. 9/06 criteria.
Criterion One
Regulation and Guidance
28Criterion One of O. Reg. 9/06 states the following:
- The property has design value or physical value because it is a rare, unique, representative or early example of a style, type, expression, material or construction method.
29To determine whether the Subject Property meets the above criterion, the Tribunal must first determine if the Subject Property is an example of a style, type, expression, material or construction method. The Tribunal must then determine if the Subject Property is a rare, unique, representative or early example of said style, type, expression, material or construction method.
30Turning to the Tool Kit, guidance is provided as to how each of the terms listed in Criterion One should be interpreted. For example:
To satisfy this criterion the property should:
- illustrate or exemplify:
a style (shared physical characteristics or features that make a building or constructed landscape identifiable with a particular time, place or group of people)
a type (a particular kind or group usually with a common function, activity or use, e.g., schools, hospitals, post office, courthouses, parks, etc.[)]
a material (where in a property serves as a particular example of the use of one or more building materials, e.g. precast concrete block, locally quarried stone, terracotta, decorative glass, etc.)
- be:
rare (because there were few in number originally, or there are few in number today due to subsequent loss)
unique (the only one of its kind or a prototype)
representative (serving as an example of a particular land use, design, etc.)
early example (in the context of time and place)
The context for determining rare, unique, representative or early should be established and communicated as part of the evaluation process and report. For example, something is rare within the entire municipality, a neighbourhood, or region of Ontario.
(pp. 49-50, Exhibit 1)
The Subject Property
31There is no dispute that the house on the Subject Property is an example of what Dr. McKendry classifies as the third substyle of Ontario Cottages: A gable-roof Ontario Cottage with a front central gable (or dormer) interrupting the eaves. There is also no dispute that the house on the Subject Property contains attributes of the Gothic Revival style.
32The City contends that the Subject Property is a rare and/or representative example of an Ontario Cottage in the Gothic Revival style (“Gothic Revival Ontario Cottage”).
33Ms. Harris prefers to classify the house on the Subject Property as a vernacular Ontario Cottage with Gothic influences or Gothic Revival decorative details. In her opinion, the Subject Property is neither rare nor representative of a Gothic Revival Ontario Cottage.
34Ms. Harris proffered that Ontario Cottages are quite common and are found everywhere throughout the City. To be rare in Ms. Harris’ opinion, there either must have been many of something and now there are very few, or something must be very interesting and therefore rare in that regard. To be representative, Ms. Harris contends that a building must be more than a typical example of something – it needs to be a very clear and unambiguous facsimile. In her opinion, the Canada Farmer Illustration is a representative example of a Gothic Revival Ontario Cottage.
35In Ms. Jonas Galvin’s opinion, the way in which individual characteristics are found together is what demonstrates a building’s style. For example, a steep central gable peak is a key characteristic of the Gothic Revival style. Without one, the readability as a Gothic version of the Ontario Cottage would be diminished. On the other hand, having only a central gable and no other Gothic characteristics diminishes representativeness. When the gable is combined with other elements, she proffered, its legibility is more pronounced and therefore representative.
36Drawing comparisons to the Canada Farmer Illustration, Ms. Jonas Galvin proffered that the Subject Property is an exemplified representation of same, sharing several similarities, including:
pointed window in the centre (also known as an ogee window);
side gable roof;
central door and two windows (split into three bays/openings);
vergeboard/bargeboard along the eaves and gables;
a chimney at each gable end; and
triangular casings above the windows and doors.
37Mr. Konrad highlighted the bargeboard, steep-pitched central dormer, and ogee vaulted window as three Gothic elements of the Subject Property that specifically contribute to its heritage value. He proffered that only three properties on the City Heritage Register, including the Subject Property, share all three of those defining elements. That, in his opinion, is why the Subject Property is a rare example of a Gothic Revival Ontario Cottage.
38Mr. Konrad further proffered that, while the original wood cladding (or clapboard) is covered with vinyl siding, the original clapboard is still at least partially extant and the Subject Property presents as a wood frame house, with the vinyl mimicking the colour and design of the original painted wood clapboard.
39Mr. Konrad clarified that, through the process of further study and refinement, the City is of the position that “representative” is a more appropriate descriptor than “rare” but that, in his opinion, the house is a rare example within the City’s Heritage Register.
40Mr. Konrad’s localised interpretation of “rare” was supported by Ms. Jonas Galvin, who proffered that additional research on the Subject Property undertaken for the hearing supports the conclusion that the use of a wood frame and wood cladding on the exterior of the house is rare within the City, with only four Ontario Cottages on the City Heritage Register retaining clapboarding on their exterior. In her opinion, the Subject Property is therefore a representative example of a mid-19th century Ontario vernacular wood frame farmhouse (or Ontario Cottage) that is a rare example of the use of wood in this architectural style in the City.
41Ms. Jonas Galvin noted that while modifications and deterioration have occurred on the Subject Property (as detailed by Mr. Warden during his testimony), it is her opinion that the heritage integrity of the Subject Property has been maintained. She directed the Tribunal to s. 5.3 of the Tool Kit, which addresses the integrity of heritage buildings as follows:
5.3. Assessing integrity
A heritage property does not need to be in original condition. Few survive without alterations on the long journey between their date of origin and today. Integrity is a question of whether the existing heritage attributes continue to represent or support the cultural heritage value or interest of the property.
(p. 44, Exhibit 1, emphasis added)
42In Ms. Jonas Galvin’s opinion, the relevant representative attributes remain on the Subject Property and the modifications thereto follow the intent of the original design characteristics. For example, while the front columns surrounding/supporting the veranda have been replaced, the use of rounded columns has maintained the decorative intent and matched the character of the building.
Findings
43Criterion One requires, first, that the Subject Property is an example of a style, type, expression, material or construction method. Based on the evidence before it, the Tribunal is satisfied that the 1.5-storey mid-19th century vernacular Ontario wood frame house, or Ontario Cottage, is an example of a style as described by the Tool Kit, having shared physical characteristics or features that make a building identifiable with a particular time and place.
44The question then becomes whether the Subject Property is a rare, unique, representative or early example of an Ontario Cottage. There was little or no evidence proffered to suggest that the house on the Subject Property is either unique or an early example. However, the Tribunal is satisfied that the house on the Subject Property is both rare and representative as a Gothic Revival Ontario Cottage in the City.
45As was determined by the Conservation Review Board (which has since been amalgamated and carried on as the present-day Tribunal) in Baker v Port Hope (Municipality), 2019 CanLII 20795 (ON CONRB), a stylistically representative building must be typical of a recognised style through comparison of that style’s benchmark characteristics:
70To be representative of a style or type, the Review Board considers that the proponent should first describe the benchmark characteristics of a recognized style or type within the context of architectural history, and then provide evidence as to how the present example meets or is typical of that benchmark. […] What are the characteristics that distinguish that style from others? In what ways are the buildings in their current condition, typical of the style? All of these components are necessary in order to determine the extent to which each building conforms to the expected elements of the style.
46The benchmark characteristics must first be described and then evidence must be proffered as to how the present example meets or is typical of that benchmark. The Tribunal finds that the City’s witnesses have done precisely that. By evaluating Ontario Cottages in their various forms (citing multiple resources by different authors), a successful benchmark of characteristics was established not only for Ontario Cottages but for a very particular subset of the same. The Gothic Revival Ontario Cottage is distinguished from its cousins by its steeply pitched central dormer, vaulted ogee centre window, decorative bargeboard and other features exemplified by the Canada Farmer Illustration, which the Tribunal accepts is a representative illustration of a Gothic Revival Ontario Cottage.
47The house on the Subject Property is a strikingly close representation of that illustration, sharing nearly all its defining architectural characteristics. The Tribunal therefore finds that the Subject Property is a representative example of a Gothic Revival Ontario Cottage.
48The Tribunal also finds that the house on the Subject Property is a rare example of a Gothic Revival Ontario Cottage in the City, noting that the Tool Kit specifically recognises that the context for determining rarity may be established as being rare within a municipality, a neighbourhood, or a region of the province.
49Among the Ontario Cottages in the City, almost none have an ogee vaulted central window, very few have bargeboard, and fewer still have bargeboard that extends beyond the central gable and along the front eaves and side gables. While several Ontario Cottages in the City have a central dormer, very few – if any – are as steeply pitched as that of the Subject Property. The same can be said for the pitch of the main roof. The rarity of the Subject Property within the context of the City is furthered by the surviving chimneys at each gable end and the use of wood frame construction and wood cladding on the exterior of the house.
50The Tribunal therefore finds that the Subject Property meets Criterion One of O. Reg. 9/06.
Criterion Two
Regulation and Guidance
51Criterion Two of O. Reg. 9/06 states the following:
- The property has design value or physical value because it displays a high degree of craftsmanship or artistic merit.
52To meet the above criterion, the Subject Property must display either a high degree of craftsmanship or a high degree of artistic merit. “Craftsmanship” and “artistic merit” are defined in the Tool Kit as follows:
Craftsmanship: the quality of execution or technical skill on a product.
Artistic merit: quality of a product relating to the creative process and its value as a work of art; showing imaginative skill in arrangement or execution.
(pp. 50-51, Exhibit 1)
53The Tool Kit notes that determining whether a property demonstrates or presents craftsmanship or artistic merit can be in either the current context when considering ability to replicate the identified heritage attributes, or that the property has been valued for its quality throughout its existence (p. 50, Exhibit 1). Further:
Historical accounts or records could help in determining how heritage attributes were perceived at the time they were constructed or manufactured.
Criteria 2 considers the quality of execution in the assembly of materials, construction methods, spatial arrangements, etc.
(p. 50, Exhibit 1)
The Subject Property
54The City submits that, for a simple vernacular farmhouse, the Subject Property displays a high degree of craftsmanship and artistic merit expressed in its Gothic Revival influences, evidenced by the steeply pitched front gable with tall Gothic arched window opening and decorative bargeboard that travels along the eaves on the front façade, into the central gable, and along the north and south gable ends. The details continue in the two corbelled red brick chimneys, the window openings with triangular headed casings, and the round columns supporting the verandah.
55The Appellant submits that the City has failed to describe or explain the design elements in any manner that would point to the quality of the craftsmanship of the Subject Property.
56Ms. Harris proffered that most of the elements cited by the City as examples of a high degree of craftsmanship and artistic merit are simply characteristics often associated with Gothic Revival Ontario Cottages. In her opinion, while vernacular architecture can be of artistic merit, and the arrangement and execution of decorative elements on a building can be an indicator of creativity and imagination, the house on the Subject Property is a common type that displays no particular imagination or artistry in its form, materials, or decoration. It is certainly not, in her view, indicative of a “high degree” of craftsmanship or artistic merit as required by Criterion Two.
57For example, Ms. Harris proffered that the bargeboard on the Subject Property fails to show a level of creativity beyond the norm for Ontario Cottages. Rather, it is cut from sawn boards, planed for smoothness, and then shaped by cutting the curves and voids with a very basic treatment at the apex of the gables, having no finials nor decorative elements to emphasise the gables or the height of the building. Conversely, she proffered, bargeboard with a high degree of craftsmanship includes carvings, finials, rosettes, and other details. She directed the Tribunal to photographs of bargeboard within the City (251 Brock Street and 102 Centre Street; pp. 239-240, Exhibit 1) that is far more ornate than the bargeboard on the Subject Property.
58In Mr. Konrad’s opinion, the Subject Property exhibits more than just the basic form of the Ontario Cottage style as it includes features that elevate the house to appear more like the original Canada Farmer Illustration than an interpretation of it. He believes that the ornate bargeboard in the front peak and gable-end walls, the central ogee window located in the half-storey dormer, and the pitch of the central dormer and gabled roof are evidence that the Subject Property displays a high degree of craftsmanship and artistic merit.
59Mr. Konrad proffered that those features are not found on basic examples of Ontario Cottages and are instead decorative features that would have taken more skill to accomplish, pointing to a high degree of craftsmanship and artistic merit employed in their construction. Specifically, in Mr. Konrad’s opinion:
The ornamental bargeboard is an excellent surviving example of the quality and technical skill required to create these architectural elements. Turning to the McKendry Paper, Mr. Konrad notes that Dr. McKendry points to “the fanciful cornice and verge (or barge) boards on the eaves of the front peak and gable-end walls” of the Subject Property as a clear example of the fascination with the ornamental aspects of the Gothic style (p. 404, Exhibit 1).
The ogee curved window requires a higher degree of skill to execute than a linear design, demanding precise carpentry, glass cutting, and fenestration. The window also contributes to the representative spatial arrangement of the house and represents the height of Gothic architectural design compared to earlier Georgian iterations of central dormer windows in Ontario Cottages.
The steep pitch of the gable roof and central gable display artistic merit to emphasise verticality, requiring more complex framing designs and more skillful labourers.
60In Ms. Jonas Galvin’s opinion, the combination of the above features, as well as the triangular headed window casings and round columns supporting the verandah, work together and showcase the building’s high quality of craftsmanship. She pointed to the rarity of the combined features of the Subject Property within the City as an indication that the quality of craftsmanship is greater than normal and of an intensity well above an industry standard.
61Turning once again to The Canada Farmer publication, Ms. Jonas Galvin proffered that there is a clear call within the writing to provide something beyond function, adding artistry to the building to improve one’s wellbeing. In her opinion, the fact that the Subject Property has been executed to follow the Canada Farmer Illustration is evidence that there is artistic merit, creativity and intention behind how each element was put together to add artistic flair to the building.
Findings
62To meet Criterion Two, the Subject Property must either display a high degree of craftsmanship or a high degree of artistic merit. The measure of “high degree” is not prescribed by O. Reg. 9/06 and is therefore subjective. However, the Tool Kit does provide some guidance.
63Craftsmanship relates to the quality of execution or technical skill on a product. Can the heritage attributes be replicated today? Did the assembly of materials or construction methods require specialised technical skills? How were the heritage attributes perceived at the time they were constructed?
64As submitted by the City, there is no requirement that the craftsmanship be unusual or unique – only that a high degree of craftsmanship was utilised. However, to find that a property displays a high degree of craftsmanship, it must be demonstrated to the Tribunal that the craftspeople (masons, carpenters, glaziers, etc.), rather than the designers or architects, executed the design of the building or its heritage features with a high degree of skill in a particular craft.
65The Tribunal is not satisfied that the evidence before it demonstrates the Subject Property meets that threshold.
66To that end, the Tribunal accepts the opinion of Ms. Harris that the bargeboard on the Subject Property represents a relatively basic execution of cutting curves and voids from dimensional lumber that could be replicated today with relative ease.
67The central ogee window, on the other hand, surely requires more skill to construct than a basic linear window treatment and may not be so easily replicated. However, the evidence proffered by Mr. Konrad is simply that its construction demanded precise carpentry, glass cutting, and fenestration. The Tribunal agrees with that general principle but is not convinced that such additional precision amounts to a high degree of craftsmanship as intended by O. Reg. 9/06. If that were necessarily the case, would all buildings containing a 19th century ogee window display a high degree of craftsmanship and therefore meet the criterion? The Tribunal does not find such an absolute to be a reasonable or intended outcome of the legislation.
68The same logic can be applied to the steep pitch of the gables. While Mr. Konrad proffered that their construction required more complex framing designs and more skillful labourers, the Tribunal was presented with no other evidence to explain the degree of skill required – “more than typical” does not automatically equate to a “high degree”.
69Accordingly, the Tribunal cannot find with certainty that the heritage features on the Subject Property display a high degree of craftsmanship.
70The Tribunal must then turn to the words of Criterion Two and ask whether, in the absence of a high degree of craftsmanship, the Subject Property displays a high degree of artistic merit.
71Referring once again to the Tool Kit for guidance, artistic merit relates to the quality of the creative process and value as a work of art. Does the spatial arrangement or execution of heritage features display imaginative skill? Has the property been valued for its quality throughout its existence?
72In considering those questions, the Tribunal turns to 17 Elm GP Inc. v Toronto (City), 2025 CanLII 33065 (ON LT) (“Elm v. Toronto”) for additional guidance. Specifically, the Tribunal found at paragraph 54 of that Decision that the Tribunal must view the terms in O. Reg. 9/06 within their context. As was the case then, the Tribunal must now consider whether the Subject Property in the case at hand displays a high degree of artistic merit within the context of the City.
73That context extends to consideration of the house’s vernacular construction. Turning once again to Elm v. Toronto:
43[…] but what of properties, such as the one under consideration here, that were built without architects in the modern sense of the word? What of buildings constructed without experts and without architectural knowledge? It cannot have been the intention of the Ontario Legislature that only elite building forms, reflecting accepted academic norms for such structures, are to be designated.
74The artistic merit of the Subject Property must be considered not only in the context of other properties in the City, but also as a house built by amateurs who decided to include several artistic embellishments, and arrange them in a purposeful way, to suit their own tastes and those valued by the community at the time the house was constructed (as evidenced by the guidance provided in The Canada Farmer publication).
75In considering those contexts, the Tribunal finds that the Subject Property displays a high degree of artistic merit, particularly within the City, showing imaginative skill in arrangement and execution.
76Like all bargeboard, the bargeboard on the Subject Property is purely decorative, serving only to add an artistic flourish to the vernacular wood frame house. Notably, that decoration was added not just to the central gable (as seen in most of the other examples within the City), but along the entire front eaves and gable ends at either side of the house. While basic in technique, the Tribunal finds that the bargeboard on the Subject Property is still rather imaginative and ornate – containing multiple different curves and voids – compared to other properties with bargeboard on the City Heritage Register, most of which display very basic geometric patterns such as rectangular or triangular sawtooth carvings (Exhibit 2).
77The ogee curved window is another display of imagination and artistry, demonstrating that the builder and/or original owner of the house desired something beyond the ordinary. The same can be said for the form of the central and side gables, the steepness of which is not typical of Ontario Cottages but an artistic choice made to emphasis verticality – a detail noteworthy enough to be referenced in peer-reviewed literature.
78Taken on aggregate with the other notable design features of the Subject Property (e.g., surviving chimneys, verandah with supporting round columns, and triangular window cases), including the symmetry and spatial arrangement of same, and given its context, the Tribunal finds that the Subject Property displays a high degree of artistic merit and therefore meets Criterion Two of O. Reg. 9/06.
Criterion Eight
Regulations and Guidance
79Criterion Eight of O. Reg. 9/06 states the following:
- The property has contextual value because it is physically, functionally, visually or historically linked to its surroundings.
80The Tool Kit provides guidance on how to satisfy the above criterion, as follows:
To satisfy this criterion a property needs to have a relationship to its broader context that is important to understand the meaning of the property and/or its context.
(p. 53, Exhibit 1)
81To apply the Tool Kit’s guidance, the Tribunal accepts Ms. Jonas Galvin’s opinion that a two-step process is appropriate. First, the character and nature of a property’s surroundings must be determined. Second, the connection between the property and the area must be determined.
The Subject Property
82The City contends that, while much of the former rural character of Montreal Street has been lost, the Subject Property is a vestige of the area’s rural or agricultural origins and is therefore historically linked to the agricultural roots of its surroundings. The City submits that the Subject Property’s uniqueness in that regard is what makes its historical connection substantial and important, giving the Subject Property cultural heritage value and interest.
83The Appellant contends that the surrounding area has been completely urbanised, that the City provided no evidence to establish a meaningful linkage between the Subject Property and historical farming operations, and that mere adjacency to former farmland to the north of the Subject Property is not an adequate basis for establishing contextual value.
84Ms. Harris proffered that, standing at the Subject Property today, there is no visual, functional, or meaningful connection to the agricultural landscape that historically characterised the surrounding area. In her opinion, modern urbanisation has substantially diminished any historical agricultural context.
85She proffered that the area’s agricultural history began to fray approximately 175 years ago, in 1854, when the adjacent stone rowhouse was built to house Grand Trunk Railway workers and their families. To the south of the rowhouse were a series of storage areas and operational sheds for the railway, which passed near the front of the Subject Property. The Subject Property itself was reduced from approximately 27.5 hectares to approximately two hectares in 1842 – prior to the earliest date of construction of the house, and then further reduced to less than half a hectare in 1878. That, in her opinion, is evidence that the Subject Property was likely never used as a farm.
86In Ms. Harris’ opinion, the Subject Property is simply a relic of a former farm owned by individuals of various backgrounds and professions, with no notable physical, functional, visual, or historical links to its surroundings that might exist if the area’s history had a specific connection to the history of the Subject Property.
87Mr. Konrad proffered that the Subject Property is connected to the 19th century agricultural history of the area as it was constructed in the 1870s by the Elliott family – known as cattle farmers and butchers – who maintained large landholdings in the area north of the Grand Trunk Railway Station. In his opinion, that connection is visually expressed through the generous setback of the house from Montreal Street, the extant barn (one of the four structures sequentially connected to the house), and remaining vegetation on the Subject Property. The design of the house, taken from The Canada Farmer, further demonstrates this historical connection in Mr. Konrad’s opinion.
88Ms. Jonas Galvin generally agreed with Mr. Konrad, furthering that:
the house on the Subject Property was one of the first to be built in the transition between the former City limits and surrounding rural area;
the Subject Property was under agricultural use and owned by several families known to be farmers;
the remnant barn suggests a link to agricultural activities continuing into the 20th century; and
the house’s architectural style as an Ontario Cottage that closely resembles “A Cheap Farm House” reinforces its probability as a remnant farmhouse.
89To support her opinions, Ms. Jonas Galvin directed the Tribunal to 13 archival maps and related materials (e.g., land registry abstracts, deeds, mortgages, census data) dating from 1815. The maps and materials demonstrate the historical agricultural character of the Subject Property and its surrounds, including ownership by several prominent farmers and their families – Thomas Dunn, various members of the Elliott family, Toland (likely John), and Henry Brown and his son – dating back to 1858.
90Ms. Jonas Galvin concluded that, based on her analysis, the Subject Property is associated with the owners of the former large agricultural properties to the immediate north. While it is unlikely the Subject Property was itself used as a commercial agricultural operation given its size, it is Ms. Jonas Galvin’s opinion that the Subject Property was still likely used for agricultural purposes as part of a larger complex of family-owned agricultural lands – evidenced in part by the presence of a barn constructed as early as 1908. It is therefore Ms. Jonas Galvin’s opinion that the Subject Property has contextual value for its historical link to the surrounding area.
Findings
91The evidence before the Tribunal does not support a finding that the Subject Property is physically, functionally, or visually linked to its surroundings. The question then becomes whether the Subject Property is historically linked to its surroundings and whether such linkage creates contextual value.
92Turning once again to Elm v. Toronto, the Tribunal – referencing the findings of the former Conservation Review Board in Black v. Niagara-on-the-Lake (Town), 2021 CanLII 44083 (ON CONRB) – defined “linked” as “requiring a substantial or important connection between a property and its surroundings that contributes to the cultural heritage value or interest of that property,” and that the connection “must establish meaningful relationship that enhances the understanding and appreciation of a property’s heritage value” (para. 74, Elm v. Toronto).
93That interpretation aligns with the guidance provided by the Tool Kit: A property needs to have a relationship to its broader context that is important to understand the meaning of the property. By that measure, the Tribunal is satisfied that the Subject Property relates to its broader context in a way that is important to understand the meaning of the Subject Property and that contributes to its cultural heritage value or interest.
94The Tribunal agrees with the Appellant’s submission that mere adjacency to former farmland to the north of the Subject Property is not an adequate basis for establishing contextual value. However, Ms. Jonas Galvin’s detailed analysis of the history of the Subject Property and its surroundings demonstrates to the Tribunal that the Subject Property was linked to its surroundings by virtue of shared ownership, familial ties, and common land use. That the Subject Lands were not specifically used for commercial agriculture at the time the house was constructed is of little consequence.
95The Tribunal finds that while physical linkages to the former farmland may no longer exist (the surrounding lands have indeed been developed with a range of urban uses), the Subject Property’s relationship to its broader context enhances the understanding and appreciation of its heritage value and is important to better understand its meaning: A cheap vernacular farmhouse embellished with Gothic ornamentation, substantially set back from the road, serving as a reminder of the area’s agricultural roots at the periphery of the City – a remnant of 19th century rural life in an area otherwise consumed by urbanisation.
96The Tribunal therefore finds that the Subject Property meets Criterion Eight of O. Reg. 9/06.
ORDER
97THE TRIBUNAL ORDERS THAT the appeal by Lech Poklewski-Koziell is dismissed.
98THE TRIBUNAL ORDERS THAT the appeal by Malgorzata Poklewska-Koziell is allowed in part, only for the purpose of amending By-law No. 2024-172 to reflect the Tribunal’s findings in relation to each of the O. Reg. 9/06 criteria. In all other respects, the appeal is dismissed.
99THE TRIBUNAL ORDERS THAT the City is to amend By-law No. 2024-172 in accordance with the findings of this Decision.
“S. Dixon”
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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.