The Corporation of the Town of Oakville v. Clublink Corporation ULC et al.

Indexed as: Clublink Corporation ULC v. Oakville (Town)

Ontario Reports: 148 O.R. (3d) 513 | 2019 ONCA 826

Court of Appeal for Ontario

Justices: Doherty, Nordheimer and Harvison Young JJ.A.

Date: October 23, 2019

Case Summary

Municipal Law — Heritage Designation

The Town of Oakville intended to designate a golf course as a cultural heritage property. The owner of the golf course applied under section 34 of the Ontario Heritage Act to demolish or remove the structure. The Town decided that an application to alter property under section 33 was the proper procedure. A purposive and contextual interpretation within the context of the evolution of municipal heritage planning led to the conclusion that the golf course was a structure within the meaning of section 34 such that the application was properly framed.

Planning — Official Plan

The Town of Oakville intended to designate a golf course as a cultural heritage property. The owner of the golf course applied under section 34 of the Ontario Heritage Act to demolish or remove the structure. The Town decided that an application to alter property under section 33 was the proper procedure. A purposive and contextual interpretation within the context of the evolution of municipal heritage planning led to the conclusion that the golf course was a structure within the meaning of section 34 such that the application was properly framed.

Statutes — Interpretation — Principles of Interpretation — Modern Principle

The Town of Oakville intended to designate a golf course as a cultural heritage property. The owner of the golf course applied under section 34 of the Ontario Heritage Act to demolish or remove the structure. The Town decided that an application to alter property under section 33 was the proper procedure. A purposive and contextual interpretation within the context of the evolution of municipal heritage planning led to the conclusion that the golf course was a structure within the meaning of section 34 such that the application was properly framed.

Facts

The respondent purchased the Glen Abbey golf course situated in the Town of Oakville. The applicant subsequently adopted a strategy to conserve significant cultural heritage landscapes across the town. The respondent advised the applicant of its intention to redevelop Glen Abbey into a residential and mixed-use community. The applicant responded by publishing and serving on the respondent a notice of intention to designate Glen Abbey and surrounding property as a property of cultural heritage value or interest.

Instead of formally objecting to the proposed designation, the respondent declared its intention to submit an application under section 34 of the Ontario Heritage Act to "demolish" and/or "remove" Glen Abbey. The applicant determined that the section 34 application was beyond the scope of that section, which spoke of a "building or structure", but was properly within the scope of section 33, which permitted an owner to "alter" a designated property.

An application judge ruled that Glen Abbey was both composed of structures and was itself a structure for the purpose of section 34, such that the respondent's demolition application had been properly framed. The applicant appealed.

Decision

Held: The appeal should be dismissed.

Majority Reasons

Per Harvison Young J.A. (Doherty J.A. concurring):

A. Overview

The central issue in this appeal is whether the respondent Clublink's application to demolish the Glen Abbey golf course is governed by the procedure and appeals as set out in section 33 or section 34 of the Ontario Heritage Act, R.S.O. 1990, c. O.18 (the "OHA"). The interpretation of the word "structure" in section 34 is at the centre of this issue.

However, the issue cannot be resolved by an interpretative approach focusing solely on the word "structure", and sections 33 and 34, without a consideration of the entire context and object of the Act, and the intention of the legislature. In the case of these provisions of the OHA, this also requires a consideration of its legislative history.

In applying this approach to the interpretation of sections 33 and 34, the court concludes that Clublink properly framed its application under section 34. In essence, a purposive and contextual approach to section 33 and 34 — and, in particular, an approach that takes into account the legislative history of the two provisions — indicates that Glen Abbey is properly construed as a "structure" for the purpose of section 34 of the OHA.

B. Background

The Factual Background

Glen Abbey is located at property municipally known as 1313 and 1333 Dorval Drive in Oakville, Ontario. Glen Abbey is one of Canada's most famous golf courses. It was the first golf course solely designed by Jack Nicklaus, one of the greatest professional golfers of all-time. The design reflects a particular emphasis on the spectator experience. In addition to design value, the Town regards Glen Abbey as having significant historical value. Glen Abbey has hosted the Canadian Open golf tournament 30 times — three times more than any other course in Canada — and is directly associated with memorable events in Canadian golf history.

The value of Glen Abbey to the Town is well described in the by-law that designated Glen Abbey to be of cultural heritage value. It states, in part:

The Property is a landmark within the Town of Oakville. The quality of the golf course, and its connection to the Canadian Open, have been important in defining the character of this community and giving it a distinct place within the larger Toronto metropolitan area, and beyond. The course is also a central defining feature of its immediate neighbourhoods, which were created in response to the construction of the course.

Since 1977, the Town's Official Plan has identified Glen Abbey as an important feature of the Town and evidenced an intention that Glen Abbey permanently remain a golf course. This intention has remained consistent for 40 years in the Town's subsequent Official Plans and zoning.

In February 1999, Clublink purchased Glen Abbey. The property is approximately 94 hectares (232 acres), including 32 hectares (78 acres) of valleylands located in the Sixteen Mile Creek Valley and approximately 62 hectares (154 acres) of tablelands above the valley. Situated on the property is an office building, unaffiliated with the operation of Glen Abbey as a golf course, known as the RayDor Estate. That building currently houses the offices of Golf Canada.

In January 2014, the Town adopted a three-stage strategy to conserve significant cultural heritage landscapes across the Town. A cultural heritage landscape "refers to the recognizable imprint of human settlement and activities on land over time". It is not a concept found in the OHA, but, rather, is derived from the Provincial Planning Policy Statement, municipal by-laws and other planning instruments. As part of the Town's conservation strategy, heritage landscape experts evaluated over 60 potential landscapes and, as part of their evaluations, they visited Glen Abbey in September 2015.

Approximately a month after that visit, on October 22, 2015, Clublink advised the Town that they intended to redevelop Glen Abbey into a residential and mixed-use community. Clublink proposed to build 3,000 to 3,200 residential units and 140,000 to 170,000 square feet of office and retail space. Glen Abbey would cease to exist.

The Town responded to Clublink's redevelopment plan on February 1, 2016 by passing an interim control by-law under the Planning Act, R.S.O. 1990, c. P.13, to temporarily restrict redevelopment of Glen Abbey, pending the completion of relevant studies, including the cultural heritage landscape evaluation.

In November 2016, Clublink submitted applications to amend the Town's Official Plan and zoning by-laws, and sought approval of a plan of subdivision, in furtherance of its proposed redevelopment of Glen Abbey. The applications proposed the construction of 3,222 residential units and 121,309 square feet of office and retail space.

In May 2017, the Town moved to recognize Glen Abbey as a significant cultural heritage landscape, and on August 24, 2017, the Town published and served on Clublink a notice of intention to designate Glen Abbey and surrounding property as a property of cultural heritage value or interest under section 29 of the OHA. This notice stated the property's cultural heritage value according to provincial criteria and described the heritage attributes that contribute to this value.

Clublink had the right, under section 29(5) of the OHA to formally object to the proposed designation, but they did not do so. Rather, on September 25, 2017, Clublink advised the Town that they intended to submit an application under section 34 of the OHA to "demolish" and/or "remove" Glen Abbey.

On September 27, 2017, the Town's council considered Clublink's redevelopment applications. Council refused Clublink's first two applications — namely, for amendments to the Town's Official Plan and amendments to the zoning by-laws. Council deferred the third application for approval of Clublink's plan of subdivision, but that application was ultimately rejected on November 6, 2017.

On October 27, 2017, the Town notified Clublink that their section 34 application was "legally beyond the scope of a section 34 OHA application" but was properly within the scope of section 33 of the OHA which permits an owner to apply to "alter" a designated property.

On November 1, 2017, the Town commenced this application for a determination of its rights under the OHA and for a declaration that section 34 did not apply to Clublink's proposed demolition or removal of Glen Abbey.

On November 21, 2017, Clublink formally submitted its section 34 application to the Town. On November 27, 2017, Clublink commenced its own application in the Superior Court for a declaration that they could make an application under section 34 of the OHA "for the demolition and removal of buildings and structures on the lands municipally known as 1313 and 1333 Dorval Drive . . . including but not limited to the tees, greens, hazards, fairways and cart paths".

On December 20, 2017, the Town's council officially passed a section 29 by-law designating Glen Abbey and the surrounding property as a property of cultural heritage value or interest.

Sections 33 and 34: Why They Matter

This appeal turns on the interpretation of sections 33 and 34 of the OHA. The central difference between sections 33 and 34 lies in the procedural rights and appeal routes afforded to an applicant under each section: under section 33, the municipal council retains the final word with respect to the application; under section 34, the Local Planning Appeal Tribunal ("LPAT") has the final word with respect to the application. This also explains the practical reason why the Town takes the position that the application is governed by section 33, while Clublink takes the position that the application is governed by section 34.

Section 33(1) reads as follows:

No owner of property designated under section 29 shall alter the property or permit the alteration of the property if the alteration is likely to affect the property's heritage attributes, as set out in the description of the property's heritage attributes that was required to be served and registered under subsection 29(6) or (14), as the case may be, unless the owner applies to the council of the municipality in which the property is situate and receives consent in writing to the alteration.

Section 33 requires the property owner to apply to the municipality if an "alteration" is likely to affect the property's heritage attributes, as reflected in the by-law designating the property under section 29 of the OHA. In other words, the property owner is required to apply to municipal council if the proposed alteration will affect the reason for the property's designation. To this end, "alter" and "alteration" are defined broadly in section 1 of the OHA to mean "to change in any manner and includes to restore, renovate, repair or disturb".

If municipal council refuses an owner's application under section 33, the owner may appeal to the Conservation Review Board. The Conservation Review Board is directed to hold a hearing and produce a report, in which it is to recommend whether the application should or should not be approved. The Conservation Review Board's report is not binding on the municipal council.

Section 34(1) provides as follows:

No owner of property designated under section 29 shall demolish or remove a building or structure on the property or permit the demolition or removal of a building or structure on the property unless the owner applies to the council of the municipality in which the property is situate and receives consent in writing to the demolition or removal.

Section 34 requires the property owner to apply to municipal council whenever it seeks to demolish or remove any building or structure on a designated property; there is no language that ties the requirement for municipal approval to whether the demolition will affect the reason for the heritage designation.

In contrast to section 33, if the municipal council refuses the owner's application under section 34, the owner of the property can appeal to the LPAT. The municipal council is bound by the LPAT decision.

Significantly, if the municipal council approves the application, or is directed by the LPAT to approve the application, the municipal council must repeal the by-law designating the property as being of cultural heritage value or interest under section 29. There is no corresponding requirement under section 33.

The Application Judge's Reasons

The application judge identified the issue raised by the consolidated applications as whether Clublink "having had its property designated under s. 29 of the OHA, can . . . now apply to the Town under s. 34(1) of the OHA for permission to demolish the entire Golf Course, or must it proceed under s. 33 and apply to alter the property?". The application judge noted that it was clear that the demolition of the buildings on the designated property fell within the scope of section 34(1). Thus, the real issue was whether the other features comprising the golf course were "structures" within the meaning of section 34(1).

The application judge ultimately concluded that "Glen Abbey . . . is both composed of structures and overall is a structure for the purpose of s. 34 of the OHA", such that Clublink had properly framed its application under section 34. The application judge reached this conclusion, in large measure, because the uncontroverted evidence before him established that Glen Abbey was the product of significant construction and engineering. Relying on judicial and administrative decisions from other contexts, he concluded that a golf course fit within the definition of a "structure" as being a "thing constructed".

Notably, the application judge tied the cultural heritage attributes specified in the Town's designation by-law to the constructed or engineered features of Glen Abbey, when he observed:

It is evident that it is the structural aspects of Glen Abbey -- the routing, shape and slope of the fairways and greens, the elevated mounds and berms for audience viewing, the creation of sand traps and other hazards, the underground irrigation and drainage engineering, the routing and installation of cart paths, etc. -- that make it a championship course and, from the Town's point of view, a cultural heritage landscape in the first place. It is the architecture of the Golf Course, and not just some superficial, non-structural gardening or grooming of the landscape, that has made this Golf Course what it is.

C. Positions of the Parties on Appeal

The heart of the parties' respective positions on this appeal may be briefly stated.

The Town argues that the application judge failed to properly apply the principles of statutory interpretation in concluding that Glen Abbey was a "structure" within the meaning of section 34 of the OHA. In particular, it argues that the application judge failed to have sufficient regard to section 33 of the OHA, and thus failed to interpret the term "structure" in section 34 in context. It says that if the application judge had more closely considered section 33 of the OHA, he would have concluded that Clublink's application was properly characterized as an application to "alter" the "property designated under s. 29" (within the meaning of section 33), not an application to "demolish or remove" a "building or structure" on the designated property (within the meaning of section 34).

The Town also argues that the application judge erred in his textual analysis of section 34 by rejecting the "ordinary meaning" of the term "structure" as being irrelevant to his analysis, and by relying on non-OHA jurisprudence to conclude that a golf course is a "structure". In the end, the Town advances a narrow approach to the interpretation of section 34, focussing on the "ordinary meaning" of the word "structure" and arguing the term cannot include a golf course.

Clublink, on the other hand, argues that the application judge had sufficient regard to the scheme of the OHA and engaged in a contextual analysis of section 34. To this end, it emphasizes that the "ordinary meaning" of a particular statutory term is only the starting point of the interpretive exercise; it is also necessary to consider the broader context in which the statutory language is employed. It also emphasizes that the uncontroverted evidence before the application judge was that Glen Abbey was "heavily engineered" and the product of significant construction. It argues that it was open to the application judge — relying on decisions as to the meaning of the term "structure" by judges and tribunals in other contexts — to conclude that a golf course is a "structure" because it is a "thing constructed".

D. Analysis

The Modern Approach to Statutory Interpretation

The governing approach to statutory interpretation in Canada is the so called "modern principle" of statutory interpretation. The modern principle, first formulated by Elmer Driedger and adopted as the prevailing approach to statutory interpretation by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), is as follows:

[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

The core teaching of the "modern principle" is that statutory language must always be interpreted purposively and in context. In other words, "statutory interpretation cannot be founded on the wording of legislation alone".

The Supreme Court's decision in Rizzo is illustrative in this regard. In that case, the issue was whether an employer petitioned into bankruptcy was required to pay employees termination pay and severance pay under section 40 and 40(a) of the Employment Standards Act, R.S.O. 1980, c. 137, respectively. The Court of Appeal held that the plain meaning of those provisions indicated that termination pay and severance pay were payable only when the employer terminates the employment. In a bankruptcy, an employee's employment is terminated not by the employer, but by the operation of law. As such, no termination or severance pay was required.

Iacobucci J., writing for a unanimous Supreme Court, reached a different conclusion. He accepted that "[a]t first blush" the conclusion that an employee is terminated by an employer upon bankruptcy "did not fit comfortably" with the plain meaning of the impugned statutory provisions, but found that the Court of Appeal's analysis was "incomplete". Rather, it was necessary to look to the purpose of the impugned provisions, the purpose of the Act, the scheme of the Act, its legislative history and the consequences of each plausible interpretation. After engaging in that analysis, Iacobucci J. concluded that termination and severance pay were payable upon an employer's bankruptcy.

As Rizzo indicates, the modern principle embodies a contextual approach to statutory interpretation. It instructs that a purely textual approach — focussing only on the literal or plain meaning of a statutory provision — may fail to adequately capture the legislature's intended meaning. This point is made in Bell ExpressVu Limited Partnership v. Rex, another leading Supreme Court case on statutory interpretation:

Driedger's modern approach has been repeatedly cited by this Court as the preferred approach to statutory interpretation across a wide range of interpretive settings . . .

The preferred approach recognizes the important role that context must inevitably play when a court construes the written words of a statute: as Professor John Willis incisively noted in his seminal article "Statute Interpretation in a Nutshell" (1938), 16 Can. Bar Rev. 1, at p. 6, "words, like people, take their colour from their surroundings".

It is important to appreciate the role that the "ordinary meaning" of statutory text plays in this interpretative framework. "Ordinary meaning" refers to "the reader's first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context" and "the natural meaning which appears when the provision is simply read through".

The "ordinary meaning" is presumed to be the meaning intended by the legislature. But "ordinary meaning" is not determinative; it is only one aspect of the modern approach. This is because "[w]ords that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context. The possibility of the context revealing a latent ambiguity . . . is a logical result of the modern approach to [statutory] interpretation". Thus, even when a statutory provision appears to have a settled meaning on first reading, the court is "obliged to look at other indicators of legislative meaning as part of their work of interpretation".

A textual approach focussing on the "ordinary meaning" of a particular statutory term or phrase will also be less helpful when the impugned term or phrase admits of more than one possible understanding in common usage. The "ordinary meaning" of a particular statutory term may itself be contested. For this reason, the modern principle instructs that the words of a statute must be read in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.

The Purpose and Object of the OHA

There is no dispute as to the overarching purpose of the OHA — namely, to provide for the conservation, protection and preservation of the heritage of Ontario. To this end, the OHA confers broad powers upon municipalities to designate properties as being of cultural heritage value or interest, thereby interfering with private property rights.

The application judge incorrectly characterized the purpose of the OHA as having a "dual . . . purpose . . . to accomplish heritage conservation in a way that does not run counter to the property owner's rights" because, as a substantive matter, the OHA does affect the property ownership rights. However, the legislature has also 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".

To this end, the OHA counterbalances the broad powers provided to municipalities to designate a property as being of cultural heritage value or interest with procedural protections for property owners when seeking to make changes to a designated property.

The Legislative History of the OHA

The legislative history of the OHA provides important context for the statutory distinction between sections 33 and 34, and also identifies the legislative intent underpinning the different procedures and rights of appeal under both provisions.

The OHA was first enacted in 1974 as The Ontario Heritage Act, 1974, S.O. 1974, c. 122 (the "1974 Legislation"). The 1974 Legislation established the basic structure of the OHA and many of its features have been carried through to the current version of the OHA.

The early iterations of the OHA disclose a "building-centric" approach to heritage. In this regard, the 1974 Legislation conferred upon a municipality the power to designate a property as being of "historic or architectural value or interest" (emphasis added). Hansard statements during debate on the 1974 legislation similarly indicate that the legislature primarily contemplated that a designation would be made in respect of an historic or architecturally valuable building. Nevertheless, as in the current OHA, the 1974 Legislation defined "property" in Part IV to mean "real property and includes all buildings or structures thereon".

The important point for the purpose of the present appeal is that the 1974 Legislation was the genesis of the statutory distinction between the procedural route to "alter" a designated property (section 33) and the procedural route to "remove or demolish" any "building or structure" (section 34). This distinction reflects a particular balancing of private property rights and heritage conservation.

Under section 33 of the 1974 Legislation, the property owner was required to apply to municipal council to make any "alteration" to the designated property where "the alteration is likely to affect the reason for the designation". As in the current OHA, "alter" and "alteration" were defined broadly to mean to "change in any manner and includes to restore, renovate, repair or disturb". The 1974 Legislation provided that if the municipality refused the application, the property owner had a non-binding right of appeal to the Conservation Review Board. This persists in the OHA to date.

Under section 34 of the 1974 Legislation, the property owner was required to apply to municipal council to "demolish or remove" a "building or structure" on a designated property. However, unlike the current version of the OHA, the municipality did not have the power to ultimately prevent the demolition of the "building" or "structure". At most, the municipality could delay the demolition or removal of the building or structure for a total of nine months. This was intended to give the municipality sufficient time to decide whether to expropriate the property, triggering an obligation to compensate the property owner.

Consistent with the building-centric approach to heritage, the 1974 Legislation provided that upon demolition of the building or structure the by-law designating the property would be repealed. This reflected the assumption that section 34 would be engaged in circumstances where the property owner sought to make changes that would wholly remove the aspects of the property that gave rise to the heritage designation in the first place. This also explains the absence of any language in section 34 that required the property owner to apply to demolish a building or structure only when that demolition engaged the reasons for the designation, similar to that in section 33; a demolition or removal was assumed to always engage the reasons for the designation.

Thus, the 1974 Legislation — and the genesis of the statutory distinction between section 33 and section 34 applications — reflects a particular balancing of private property rights and heritage conservation. The property owner remained ultimately entitled to demolish the building or structure and put the property to his/her desired use (subject only to the municipality's power of expropriation). At the same time, the municipality could exercise greater control over proposed alterations to a designated property where the alteration would engage the reason for the designation. The central distinction between the two provisions at that point was that an application to demolish or remove a structure under section 34 was assumed to effectively eliminate the basis for the designation. The paradigmatic example is the historic house whose owner was seeking the municipality's approval to remove or demolish.

In 2005, significant amendments were introduced to the OHA through the Ontario Heritage Amendment Act, 2005, S.O. 2005, c. 6 (the "2005 Amendments"). In particular, the 2005 Amendments provided the municipality the power to refuse outright — and not merely delay — an application to demolish a building or structure on a designated property under section 34.

To counterbalance this expanded municipal power, the 2005 Amendments provided the owner with a binding right of appeal to the Ontario Municipal Board (now the LPAT). The introduction of these expanded procedural protections indicates that, consistent with the 1974 Legislation, the legislature viewed the power of a municipality to refuse outright an application for demolition or removal of a structure as a more profound interference with private property rights. As with previous iterations of the OHA, once the municipality had approved the owner's application — or the OMB had directed the municipality to approve the application — the municipality was obligated to repeal the by-law designating the property as being of cultural or historic value or interest.

Hansard statements made during debate on the 2005 Amendments repeatedly described the goal of the amendments as being to provide municipalities with increased power to control, and not merely delay, the demolition of heritage properties. The owner's right to a binding appeal to the OMB was a critical corollary of this increased municipal power. For example, during the first reading of the bill that introduced the 2005 Amendments, the Hon. M. Meilleur (Minister of Culture and Francophone Affairs) described the impetus behind the changes in the following terms:

Some key amendments to the Ontario Heritage Act we are introducing today include new municipal powers to prevent demolition of heritage buildings. This most important change will give municipalities tools to prevent rather than delay the demolition of heritage properties. This amendment will also ensure that increased demolition controls will be balanced with the landowner's right to binding appeal.

To summarize the foregoing discussion, a number of key points emanate from the legislative history of the OHA, generally, and sections 33 and 34, in particular:

• The structure of the OHA — and section 33 and section 34 — is derived from an early "building-centric" paradigm of heritage properties. To the extent that the case law is instructive, heritage issues have focused primarily on heritage buildings. There is no difficulty applying section 33 and section 34 — and delineating the boundaries of the two provisions — to a property designated under the OHA because of the cultural heritage attributes of a building on the property.

• The interpretive difficulty in this appeal arises largely because municipal heritage planning has, at least in practice, evolved beyond a focus on cultural heritage buildings in a manner not fully reflected in the OHA. For example, the Town purported to designate Glen Abbey as a "cultural heritage landscape". But the term "cultural heritage landscape" is not found in the OHA; it is derived from the Provincial Planning Policy Statement, the Town's by-laws and other planning instruments.

• The assumption underpinning the 1974 Legislation — and the initial division between sections 33 and 34 — was that section 34 would be engaged in circumstances where the proposed changes to the designated property would wholly remove the reason for the designation under section 29 of the OHA.

• The added procedural protections for property owners in section 34 were premised on the understanding that the refusal of an application to permit the owner to demolish a building or structure (rather than to merely make an alteration) was a more profound interference with private property rights.

The Scheme of the OHA and Sections 33 and 34

With that legislative history in mind, the court turns now to the scheme of the current OHA. The words of a statute must be interpreted in context — and with regard to related statutory provisions. This is particularly true when a statute, as here, provides a distinction between two different procedural routes dealing with similar applications. As a result, sections 33 and 34 must be considered together: the scope of section 34 can only be determined with reference to section 33, and vice-versa.

To begin with, neither section 33 nor section 34 interfere with the municipality's right to designate, protect or acquire the property in question. Both provisions further the overarching purpose of the OHA — namely, to conserve, protect and preserve Ontario's heritage — because the ultimate decision as to whether to approve an alteration or demolition is made by the municipality or the LPAT (an independent administrative body). The property owner is not free to deal with his or her property as he or she chooses.

Second, both sections 33 and 34 are intended to provide procedural protections to property owners that seek to make changes to a designated property. From the perspective of the property owner, section 34 provides considerably greater procedural protections because the property owner has the right to appeal the municipality's refusal to approve the demolition or removal to an independent tribunal that has the power to bind the municipality.

Third, the text of sections 33 and 34 indicates that section 34 was intended to apply to a subset of proposed "alterations" to a designated property, where the property owner seeks to demolish or remove a building or structure on the designated property. "Alter" and "alteration" are defined broadly to mean "to change in any manner and includes to restore, renovate, repair or disturb" (emphasis added). While "demolition" or "removal" are not defined in the OHA, the statutory definition of "alteration" is sufficiently broad to embrace a "demolition". In others, the "demolition" or "removal" of a structure is a "change" to the designated property.

Finally, the fact that a successful application by a property owner under section 34 leads to the automatic repeal of the designation by-law under section 29 of the OHA — a feature of each successive iteration of the OHA from the 1974 Legislation to present — indicates that the legislature assumed that the demolition or removal of the building or structure in question would wholly remove the cultural heritage attributes associated with the designated property.

To summarize, the scheme of the OHA indicates that section 34 was intended to provide greater procedural protections to property owners with respect to a subset of "alterations" involving a "demolition or removal" of a "building or structure" that would wholly remove the cultural heritage attributes associated with the property. This is consistent with the legislative history of the OHA, discussed above. As a result, the different appeal routes as between sections 33 and 34 are not irrelevant to the interpretive issue raised by this case. The different procedural protections as between sections 33 and 34 are an important part of the scheme of the OHA and reflect a particular balancing of private property interests and the public interest in conserving property of cultural heritage value or interest.

In light of the purpose of both sections 33 and 34, and their relationship to the overall objective of the OHA of protecting properties of cultural heritage value, it is not necessary, and would be inappropriate, to interpret section 33 broadly and section 34 restrictively. While the court cites Toronto College for the proposition that section 33 of the OHA is to be interpreted broadly, the issue in that case was whether a proposed "alteration" was "likely to affect the reason for the designation" under section 33. In light of the purpose of the OHA, it makes sense to interpret that language broadly so as to trigger the requirement for municipal approval of a proposed alteration. The same cannot be said when it is accepted that an application for municipal approval is required, and the interpretive issue is whether the property owner must proceed under sections 33 or 34. Put somewhat differently, it does not undermine the purpose of the OHA to read section 34 — and the circumstances in which a property owner will be afforded appreciably greater procedural protections — broadly.

The Text of Section 34

With this contextual backdrop in mind, the court turns now to the text of section 34. Central to this appeal is the meaning of the term "structure" within that provision. Since the term "structure" is not defined in the OHA, it is necessary to consider the term in the immediate context of section 34, and with regard to the broader scheme and purpose of the OHA.

The dissent concludes that a golf course is not a "structure" within the meaning of section 34 of the OHA, relying primarily on the "ordinary meaning" of that term. Indicative of this approach is the statement that "no ordinary person would visit any golf course and be heard to comment 'My, isn't this a beautiful structure'".

The majority reaches a different conclusion, for a number of reasons.

First, as discussed, the "ordinary meaning" of a statutory term is only the starting point for the statutory interpretative exercise. A statutory term that appears to have a clear meaning may be ambiguous once placed in its proper context. The legislative context for the use of the term "structure" in section 34 is the initial "building-centric" conception of cultural heritage and assumption that the demolition of a "building" or "structure" on the designated property would wholly remove the property's cultural heritage value or attributes.

Second, while a golf course may not be intuitively understood to be a "structure", the term "structure" is itself a mutable concept. A structure has been variously defined as a "thing constructed". For example, in Algonquin Power (Long Sault) Partnership v. Chubb Insurance Co. of Canada, the court itemized the following definitions of "structure":

• "Any construction, production or piece of work artificially built up or composed of parts purposely joined together"

• "[A]nything which is constructed . . . it involves the notion of something which is put together consisting of a number of different things . . . constructed as to make one whole, which is then called a structure"

• "That which is built or constructed, a building or edifice of any kind; a fabric or framework of material parts put together. It is something which is constructed, and involves the notion of something which is put together, consisting of a number of different things that are so put together or built together, constructed as to make on whole which is then called a structure"

Similarly, in Cardiff Rating Authority and Cardiff Assessment Committee v. Guest Keen Baldwin's Iron and Steel Co., Denning L.J. defined "structure" in the following terms:

A structure is something which is constructed, but not everything which is constructed is a structure. A ship, for instance, is constructed, but it is not a structure. A structure is something of substantial size which is built up from component parts and intended to remain permanently on a permanent foundation; but it is still a structure even though some of its parts may be moveable, as, for instance, about a pivot.

Notably, the Town has itself defined the term "structure" in its zoning by-law in similarly expansive terms: a "structure" is "anything that is erected, built or constructed of parts joined together".

The somewhat amorphous definitions of the term "structure" offered in the case law underscores the importance of interpreting the term in context. Nonetheless, Glen Abbey accords with this understanding of a "structure" as being a "thing constructed". The uncontroverted evidence filed on the application — and accepted by the application judge — is that a golf course is the product of significant construction and engineering. It is built up of component parts and intended to remain permanently on its foundation.

Third, and more significantly, the use of the term "structure" elsewhere in the OHA indicates that the legislature intended to provide the term a broad meaning, and intended the term to capture constructed entities comprised primarily, if not entirely, of land. Part VI of the OHA (dealing with the conservation of resources of archaeological value) defines "property", for the purposes of that part, as "real property, but does not include buildings or structures other than ruins, burial mounds, petroglyphs or earthworks" (emphasis added). The fact that the legislature felt it necessary to qualify the meaning of "structure" in Part VI to exclude those structures other than those enumerated in section 47, indicates that elsewhere in the OHA (including Part IV, which deals with the conservation of property of cultural heritage value or interest) it intended the term "structure" to capture earthworks and other constructed landscape features. This also indicates that the legislature did not use the term "structure" in Part IV in association with the term "building" in section 34 to capture only "building-like" structures.

Fourth, the language does not support the meaning of the word "on" which is adopted by the dissent. Neither the term a "building or structure on the property" in section 34(1), nor the definition of "property" in section 26 as "real property and [including] all buildings and structures thereon" (emphasis added), modifies the meaning of the term "structure" to refer only to "structures" that are physically located above, and separate from, the ground.

The term "property" in section 34(1) refers to the property designated under section 29 of the OHA. Here, the designated property is defined with reference to the real property description in the Ontario Land Titles system, as set out in Schedule A to the designation by-law. Glen Abbey — the golf course — is not co-extensive with the designated property. The legal description of the "property" subject to the designation includes real property surrounding the real property on which the golf course is situated, including the Greeneagle Property. Thus, the term "on" in section 34 appears to be used to identify buildings or structures contained within a particular description of real property. This is also consistent with how one speaks in identifying features of real property. For example, one could refer to a river, creek, pond or other feature consisting primarily if not entirely of earth or other natural features as being located on a particular description of real property. For example, "she has a swimming pond on the property".

The dissent relies on the language of a "structure or building on the property" (in section 33) and "real property and includes all buildings thereon" (in section 26) in concluding that it would stretch the term "structure" past its "breaking point" to suggests a golf course is a "structure" because the components of a golf course "consist fundamentally of earth". However, the language "on" or "thereon" does not modify the term "structure" to refer only to items that are wholly distinct from land. There is nothing in the language of the OHA that dictates that result. To the contrary, to the extent that the legislature turned its mind to the issue, it chose to define the term "structure" in Part VI of the OHA in a manner that indicates it employed the term "structure" elsewhere in the OHA, including in Part IV, to encompass earthworks and other entities consisting fundamentally of earth.

Moreover, the fact is that the proposed demolition/redevelopment of Glen Abbey would entirely obliterate the qualities founding the heritage designation. Schedule B to the by-law designating Glen Abbey and the surrounding property as being of cultural value or interest describes the property's "cultural heritage value or interest" as follows:

• Design/Physical Value — Glen Abbey is the "first course in the world to significantly enhance the spectator experience by combining stadium design with a hub-and-spoke layout"

• Historic/Associative Value — Glen Abbey is "one of the most significant works by one of golf's most significant figures"

• Contextual Value — Glen Abbey is "a landmark with the Town" and has helped to "define the character of the Town"

Both instruments further defined Glen Abbey's "heritage attributes" as including, among other things:

• the historic use and ongoing ability of the property to be used for championship, tournament and recreational golf

• the historic use and ongoing ability to host championship and other major golf tournaments, such as the Canadian Open

• the close and ongoing association of the course design with Jack Nicklaus/Nicklaus Design

There can be no doubt that Clublink's plans for Glen Abbey and the surrounding property, if realized, would wholly remove the cultural heritage attributes identified by the Town. This is precisely the type of situation the legislature, from the introduction of the 1974 Legislation through to the 2005 Amendments, contemplated would be captured by section 34 — namely, that the proposed demolition or removal of a building or structure would engage the very reason for the property's designation, with a successful application necessitating the repeal of the designation by-law. The fact that Clublink's re-development plans would eliminate the cultural heritage attributes associated with the designated property favors interpreting the term "structure" broadly to capture Glen Abbey, in order to give effect to the legislative intent underpinning section 34.

In response to some of the arguments raised by the dissent: First, the dissent suggests that it is more appropriate to construe Clublink's application as falling within section 33 of the OHA because Glen Abbey's cultural heritage value is bound up in the land itself, which would remain (at least in part) if Clublink was allowed to demolish the golf course. However, this ignores the Town's own characterization of the property's cultural heritage attributes, which defines the cultural value of the property with primary reference to the features of the golf course, including the "historic use and ongoing ability of the property to be used for championship, tournament, and recreational golf". The Town does not assert that there is cultural or heritage value in the turf itself. If Glen Abbey is demolished, the cultural heritage attributes asserted by the Town will be wholly eliminated.

The dissent also suggests that it is appropriate to circumscribe the scope of section 34 because a successful application under that provision will result in the repeal of the designation by-law, even if the property owner has not directly challenged the heritage designation. However, the legislature has chosen to provide a property-owner multiple avenues by which it may seek to deal with property subject to a designation. The fact that a property owner has chosen to proceed in a certain manner cannot alter the proper interpretation of the statutory provisions at issue. It should also be noted that, on the facts of this case, Clublink had applied to redevelop Glen Abbey and the surrounding property into a commercial and residential development before the Town passed the designation by-law. It made practical sense for Clublink — in light of its developed plans for the property and the Town's stated opposition to those plans — to forgo an initial challenge to the designation itself — and proceed to apply under section 34 of the OHA.

Finally, tacit in the dissent's reasons is the assumption that it furthers the purpose of the OHA to broadly construe the circumstances in which the municipality will have the final say over the proposed change to the designated property. In other words, section 33 (giving the municipality the final say) should be construed broadly, while section 34 (giving the LPAT the final say) should be construed narrowly, particularly because a successful application will result in the repeal of the designation by-law.

However, while it is consistent with the purpose of the OHA to construe broadly the municipality's power to designate a property as being of cultural heritage value or interest, sections 33 and 34 are concerned with providing corresponding procedural protections to property owners that seek to make changes to their property. Both sections 33 and 34 are consistent with the overarching goal of the OHA — to conserve, protect and preserve Ontario's heritage — because the ultimate decision as to whether to approve an alteration or demolition is made by a public body. Both provisions fetter the property owner's ability to deal with their property as they would otherwise choose to do. There can be no assumption that the LPAT will act in a manner inconsistent with the purpose of the OHA, and the balancing of the public interest and private property rights that it envisions.

Subsequent to the hearing of this appeal, the More Homes, More Choice Act, S.O. 2019, c. 9, received royal assent. Schedule 11 of the Act, once it is proclaimed into force, will amend sections 33 and 34 of the OHA. The parties submitted that the amendments did not impact the present appeal. Accordingly, the amendments have not been considered in this analysis.

E. Conclusion

As a result, the court concludes that Glen Abbey is a "structure" on a designated property within the meaning of section 34(1). Clublink properly framed its application to demolish and/or remove Glen Abbey under section 34.

This conclusion flows from the text of section 34, the context of the OHA and the purpose of the OHA, generally, and sections 33 and 34, specifically, viewed in light of the statute's legislative history. Section 34 applies because Glen Abbey is the product of significant construction and engineering, comprised or built up of constituent parts, and intended to remain permanently on the property. This interpretation accords with the recognition that the term "structure", when used in the OHA, embraces earthworks. It is also consistent with the legislative intention underpinning both the OHA, generally, and section 34, specifically, to conclude that Glen Abbey is a "structure" within the meaning of section 34 because Clublink's plans, if realized, would wholly remove the cultural heritage attributes identified in respect of the designated property.

F. Disposition

For the foregoing reasons, the appeal is dismissed, subject to one caveat. At the hearing of the appeal, the parties agreed that the application judge erred in ordering the Town to process Clublink's section 34 application. Clublink's request for mandamus had been withdrawn on consent. As a result, that aspect of the application judge's order is set aside, but otherwise the appeal is dismissed.

Clublink is entitled to its costs of the appeal, fixed in the agreed upon amount of $35,000, plus disbursements and HST.

Dissenting Reasons

Per Nordheimer J.A.:

Analysis

The dissent does not agree with the majority's analysis or the conclusion that it reaches. In the dissent's view, if Clublink wishes to obtain permission to proceed as it plans, then it must seek the permission of the Town to do so under section 33 of the OHA.

The proper interpretation of a statute is generally considered to raise a question of law regarding which the standard of review is correctness. That is the standard of review that applies to this appeal.

The dissent begins by reproducing the two sections of the OHA that are at the heart of this dispute. Section 33(1) reads:

No owner of property designated under section 29 shall alter the property or permit the alteration of the property if the alteration is likely to affect the property's heritage attributes, as set out in the description of the property's heritage attributes that was required to be served and registered under subsection 29(6) or (14), as the case may be, unless the owner applies to the council of the municipality in which the property is situate and receives consent in writing to the alteration.

Section 34(1) reads:

No owner of property designated under section 29 shall demolish or remove a building or structure on the property or permit the demolition or removal of a building or structure on the property unless the owner applies to the council of the municipality in which the property is situate and receives consent in writing to the demolition or removal.

Each of these sections has an appeal process but the appeal processes differ between the two sections. Under section 33, if the municipal council refuses an owner's application, the owner of the property may seek an appeal to the Conservation Review Board. The Conservation Review Board is then directed to hold a hearing and produce a report in which it is to recommend whether the application should or should not be approved. The view of the Conservation Review Board is not binding on the municipal council.

In contrast, if the municipal council refuses an owner's application under section 34, the owner of the property can seek an appeal to the Local Planning Appeal Tribunal (formerly the Ontario Municipal Board) under section 34.1. The Local Planning Appeal Tribunal must hold a hearing after which it can dismiss the appeal, or it can order the municipal council to grant the application. The municipal council is bound by the decision of the Local Planning Appeal Tribunal. If the municipal council approves the application or, is directed by the Local Planning Appeal Tribunal to approve the application, the municipal council must repeal the section 29 designation by-law.

The application judge placed considerable reliance on the different routes of appeal in terms of his conclusion as to whether section 34 applied to Clublink and its plans for Glen Abbey. The dissent believes that the application judge overemphasized this issue in his interpretive analysis. It is not clear how the appeal routes inform the proper definition of the word "structure" in section 34 or the decision on whether section 33 or section 34 applies to Clublink's plans. There is no justification for giving section 34 a broad interpretation and section 33 a narrow one just because of a difference in the appeal routes. The rules of statutory interpretation do not depend on such a distinction. Rather, those rules apply to both sections equally. Further, to the extent that the proper interpretation of the OHA has been previously considered, existing authorities make it clear that section 33 is to be given a broad and purposive interpretation. That approach would also be consistent with the purpose of the OHA.

The other overarching concern with the application judge's reasons is that, notwithstanding the conflict between the parties over which of the two sections should apply, the application judge never engaged in any consideration or interpretation of section 33. Rather, the application judge's entire analysis is based solely on section 34. He does not give any consideration as to how section 34 and section 33 are to work together in the overall scheme of the OHA.

Contrary to the majority's suggestion, the dissent does recognize that the Supreme Court of Canada has been clear that the interpretation of any section in a statute is to be undertaken "harmoniously with the scheme of the Act". However, the concern is that the application judge did not follow that approach.

The purpose of the OHA was discussed by the Supreme Court of Canada in St. Peter's Evangelical Lutheran Church (Ottawa) v. Ottawa (City). In that case, the purpose was adopted as expressed by MacKinnon A.C.J.O. in the Court of Appeal:

It is to preserve and conserve for the citizens of this country inter alia, properties of historical and architectural importance. The Act is a remedial one and should be given a fair and liberal interpretation to achieve those public purposes which I have recited.

This purpose of the OHA was reiterated by the Court of Appeal in Toronto College Street Centre Ltd. v. Toronto (City), where Cory J.A. said:

The aim of the Ontario Heritage Act is to conserve, protect and preserve the heritage of Ontario.

The Court then went on to consider the purpose of section 33 itself. On that point, Cory J.A. said:

A reading of the Ontario Heritage Act as a whole makes it clear that s. 33 must be given a wide and liberal interpretation. To do otherwise would frustrate the very purpose and intent of the Act.

While there is no corresponding judicial determination of the scope to be given to section 34, there is no compelling reason to give that section any less interpretative muscle given the overall purpose of the statute. Suffice it to say that it is well-established that, in considering the OHA, its provisions are to be interpreted broadly in order to accomplish the acknowledged purpose of the statute. Both sections must therefore be interpreted with the ultimate goal of the statute in mind. The differences in the appeal routes do not help in any principled approach to the interpretive analysis.

The dissent now turns to its analysis regarding the proper interpretation of the two sections. As will be explained, that analysis is complicated by the reality that it is not immediately apparent why the distinction is statutorily drawn between sections 33 and 34. Nevertheless, the proper starting point in interpreting any text is that the ordinary meaning understood by the reader is assumed to be the meaning intended by the writer.

On this interpretative exercise, the dissent agrees with the initial view of the application judge that having reference as to how a particular word, such as "structure", has been interpreted when used in other statutes or contexts is not particularly helpful. Other statutes will have purposes and schemes that are very different from the purpose and scheme of the OHA. For example, determining how the term "structure" may have been interpreted for the purposes of the Income Tax Act, or, more specifically, how that statute might treat expenses associated with operating a golf course, does not provide any assistance as to the proper interpretation of that word for heritage purposes.

It should also be noted that at least one of the cases on which the application judge placed reliance — namely, Calgary Golf & Country Club v. Calgary (City) — expressly avoided making any determination of the meaning of the word "structures". The judge, on appeal in that case, decided that the resolution of that issue was not necessary for the purpose of deciding the issue that was before him.

In the dissent's view, the meaning that would come spontaneously to the mind of an ordinary person, reading the provision, would not be that a golf course is a "structure". In reaching that conclusion, the dissent is mindful of the fact, as any person would be, that the creation of a golf course involves considerable construction. Significant quantities of earth may need to be moved and fashioned into mounds and other features of the course, including greens and tees. Earth has to be removed to create ponds and bunkers. Irrigation systems have to be routed throughout the course. Trees may have to be added, or moved, or removed. Electrical cables have to be installed for different purposes including, as is the case with Glen Abbey, cables for technological purposes, including large display screens.

The fact that there is considerable engineering and construction expertise involved in creating a golf course does not lead inexorably to the ultimate creation being properly defined as a structure, however. As Denning L.J. aptly said in Cardiff Rating Authority and Cardiff Assessment Committee v. Guest Keen Baldwin's Iron and Steel Co.:

A structure is something which is constructed, but not everything which is constructed is a structure.

The dissent is equally mindful of the fact that many golf courses will incorporate, or be fashioned around, naturally occurring features. Indeed, Glen Abbey itself draws heavily on the naturally occurring features of Sixteen Mile Creek to create the impact of the valley holes.

None of these realities changes what a person sees when they visit a golf course and that is land. Land that stretches out in every direction, albeit often in a very sculpted way. Land that is covered with grass, trees, bushes and the like, of varying heights and types. And, of course, a collection of tees, greens, bunkers and, sometimes, ponds.

The nature of the construction involved in a golf course is explained in the affidavit of Thomas McBroom that was filed on behalf of Clublink. There was a dispute between the parties as to the admissibility and use that could be made of this evidence. The Town submitted that Mr. McBroom's evidence was improper opinion evidence that should be given no weight. Clublink's position was that the evidence was factual and related to how golf courses are constructed. Notwithstanding this dispute, and the written submissions made respecting the evidence, it does not appear that the application judge ever addressed the evidentiary issue.

The dissent does not see that much turns on this disagreement. There cannot be any serious dispute that the creation of a golf course, especially a championship golf course, involves many different forms of construction. The dissent tends to agree with Clublink that Mr. McBroom's affidavit simply provides factual information that might be of assistance to a court in understanding the steps involved in constructing a golf course. His evidence has relevance for that very limited purpose.

In terms of the dissent's analysis, two things arising from Mr. McBroom's affidavit are noted. One is his statement that golf course design is "a speciality within the landscape architecture umbrella". The other is his general observation that golf courses involve "the manipulation of land". While both are small points, neither of these observations fit comfortably with the notion that a golf course is a structure.

Of more importance, however, is the reality that no ordinary person would visit any golf course and be heard to comment, "My, isn't this a beautiful structure". Rather, the comments would be directed to the landscape that is displayed before them and its aesthetic value. Indeed, Mr. McBroom remarks on the importance of aesthetics in the creation of a golf course, noting that bunkers and ponds, among other things, may be placed just for that purpose.

The dissent is not unmindful of the reason why Clublink has the need to try and qualify Glen Abbey as a structure. It does so in order to have resort to a different appeal process — one that binds the Town. However, the practical economic interest that drives Clublink to want to invoke that appeal process cannot properly inform the meaning to be given to the word "structure" in the context of the OHA. The dissent would say that that is especially so since the OHA is not generally concerned with economic interests. Rather, it is concerned with the preservation of the cultural and historical heritage aspects of the province.

On this point, it appears to the dissent that the application judge fundamentally misconstrued the purpose of the OHA. In his reasons, the application judge said:

The dual aspect of the heritage policy was reiterated by the Court of Appeal in Toronto College Centre Street Ltd. v Toronto (City) (1986), 56 OR (2d) 522, at para 38. Cory JA, for a unanimous Court, stressed that the OHA is to be interpreted purposively, and that the purpose is to accomplish heritage conservation in a way that does not run counter to the property owner's rights.

With respect, that is not a proper reading of what Cory J.A. said in Toronto College Centre Street. At no point did the Court, or for that matter any other court, interpret the OHA as requiring that heritage conservation had to be undertaken in a way "that does not run counter to the property owner's rights". Indeed, it will be self-evident that a heritage designation will, by definition, interfere and limit a property owner's rights because it will restrict the use to which a property owner can put its property. This very point was made by McIntyre J. in St. Peter's Evangelical Lutheran Church (Ottawa) when he said:

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.

The application judge's erroneous interpretation of the purpose of the OHA undermines his analysis and conclusion.

Returning then to the interpretation of the word "structure", after referencing case law dealing with the term "structure" in other contexts, the application judge said:

If a landfill and a drag strip are "structures" because of their engineered features, and if a golf course is a "structure" for income tax depreciation purposes and for municipal tax assessment purposes, then a golf course can certainly be a structure for cultural heritage purposes.

The dissent does not quarrel with the proposition that a golf course "can" be a structure for cultural heritage purposes. But that is not the question. The legislature might have chosen to define "structure" in the OHA such that golf courses and the like were brought within its grasp, but it did not do so. Thus, the question for the court is whether a golf course is a structure under the OHA, starting with the ordinary meaning of that term, and with the scheme of the statute firmly in mind.

The dissent is reinforced in its conclusion that Glen Abbey is not properly characterized as a structure for the purposes of the OHA by a number of factors, beyond the reality of a reasonable person's first impression meaning. First is the fact that there is a definition of the word "property" in Part IV of the OHA. Part IV includes sections 33 and 34. "Property" is defined in section 26 as "real property and includes all buildings and structures thereon". It follows, from this definition, that a structure is something that is located on real property. Similarly, section 34(1) refers to the demolition of a "building or structure on the [designated] property" (emphasis added). The designation by-law identifies the "real property" described as Schedule A to the by-law as the property subject to the section 29 designation. In the dissent's opinion, it stretches the definition of "structure" past its breaking point to suggest that tees, greens, fairways and rough, constitute items that are located "on" real property. Each of these items consist fundamentally of earth. They are part of the earth. Indeed, they depend on the earth to survive. There is no logical or sensible way of making a demarcation between where any fairway ends and the land (i.e., the real property) begins. They are one and the same.

Second is the fact that there is a definition of "alter" in the OHA. It is defined in section 1 as meaning "to change in any manner and includes to restore, renovate, repair or disturb and 'alteration' has a corresponding meaning". What Clublink proposes to do with Glen Abbey is essentially to bulldoze the property, to fill in the ponds and bunkers, and flatten the various berms and other vantage points so that the property becomes suitable for use as residences, or buildings, or malls and the like. In the dissent's opinion, that intention, if realized, would much more reasonably be characterized as constituting a change in the property, particularly a change "in any manner", than it would a "demolition" or "removal" which are the terms used in section 34.

It is at this point that the dissent returns to consider the relationship between sections 33 and 34. The dissent earlier said that it is not immediately clear why the legislature determined that it was necessary to have both sections. Nevertheless, the dissent notes that these two sections have been in the OHA since the introduction of the original statute in 1974. At that time, however, a municipality could not prevent the ultimate demolition of a building or structure. The municipality could, at most, delay that action for a sufficient period, apparently to allow the municipality enough time to expropriate the building or structure and thus preserve it — a notably expensive and time-consuming process.

In any event, in 2005, significant amendments were made to the OHA, particularly to section 34. Those amendments now allowed a municipality to actually prevent the demolition or removal of a building or structure. In turn, though, any decision by the municipality to do so was subject to a binding appeal to the Local Planning Appeal Tribunal.

It appears that the purpose behind these amendments was two-fold. One was to allow a municipality to prevent the demolition or removal of a building or structure that was deemed to be of cultural heritage value or interest without having to engage in the costly process of expropriating the building or structure. The other was to provide a measure of protection to the owner of the building or structure, who would now have a binding and independent appeal route from any such decision by a municipality.

It would seem that this new structure was developed with the focus being on the paradigmatic model of heritage issues being directed towards buildings. The majority appears to accept that was the focus. Indeed, to the degree that the case law provides any insight, it appears that heritage issues have generally fixated on buildings and other related structures. It is only more recently that other elements of our environment, such as landscapes, have come to be seen as having cultural heritage value or interest and thus warranting overriding public protection. This view would also be consistent with the early building-centric application of the OHA, which focused on "cultural and architectural value" (emphasis added).

However, and contrary to the majority's conclusion, none of this background, or theory regarding the interrelationship between these two sections, requires that the OHA, or any of its provisions, be given an unnatural or strained interpretation. It may well be that the legislature viewed buildings and structures as being the most common form of private property that would attract cultural heritage value or interest and involve the greatest intrusion on the rights of private property owners. Thus, the legislature decided to provide a different, and perhaps more stringent, procedure for protecting them than it decided was necessary for other items of cultural heritage value or interest. None of this should be allowed to distort the interpretative process, however. There is no need, or principle, that requires a statutory interpretation to be arrived at in order to shoe-horn a given factual situation into one section or the other. That is particularly so when the ultimate objective of those efforts is to promote private interests over public ones, which is itself contrary to the overriding purpose of the OHA in seeking to preserve property of cultural or heritage value or interest for the benefit of the public at large. Indeed, it is not clear why the majority wishes to adopt what the dissent characterizes as a strained interpretation of the word "structure" simply to give a private party a leg-up over the public interest.

Third is the effect of what Clublink plans to do with Glen Abbey. Clublink plans to eliminate the very facets of Glen Abbey that gives Glen Abbey its cultural heritage value. Those attributes are detailed in Schedule B to the by-law passed by the Town that designated Glen Abbey and surrounding property to be of cultural heritage value or interest under section 29 of the OHA. Section 33 expressly captures situations where a property owner proposes to alter or change its property and the alteration "is likely to affect the property's heritage attributes". There is no similar requirement in section 34. Consequently, section 33 has a more direct and immediate connection to the effect of Clublink's plans than does section 34. The dissent does not see how that reality provides any support for the majority's conclusion.

Further, given that the overarching purpose of the OHA is to protect Ontario's heritage, it makes sense that the municipality is to have the "final say" on an alteration that will affect the property's cultural heritage value. By contrast, since section 34 applies to any building or structure on the designated property — irrespective of whether that structure contributes to the property's cultural heritage value — it makes sense to provide the property owner greater procedural protections. These latter protections will guard against the risk that a municipality might interfere with private property rights in a manner that does not actually further the preservation of Ontario's heritage.

There is another reason to draw this distinction. If a building or structure has cultural heritage value or interest, and it is demolished, then nothing remains to remind anyone of that prior cultural heritage value or interest. It is simply gone. However, a property that has cultural heritage value or interest bound up in the land itself remains, even if the aspects of it that gave it cultural heritage value or interest are changed. The property remains. It cannot be eliminated. And the property owner retains the value inherent in that land.

Fourth is the ultimate consequence of Clublink's plans. One can assume that the Town will refuse permission, under section 34, for Clublink to do that which it wishes to do. For the Town to do otherwise would be entirely inconsistent with its position as to the cultural heritage value of Glen Abbey. If that occurs and Clublink appeals, the Local Planning Appeal Tribunal can reverse the Town's decision and order the Town to "consent to the demolition or removal of a building or structure". If that order is made with respect to Glen Abbey, then the Town is required, under section 34.3, to "pass a by-law to repeal a by-law or the part thereof designating a property under section 29". In other words, through this process, Clublink obtains a repeal of the designating by-law without any direct challenge to the designating by-law.

The dissent repeats that, for the purposes of this appeal, Clublink did not make any formal objection to the passing of the designating by-law nor raise any direct challenge to it. The dissent notes that, even if Clublink had done so, any appeal would be to the Conservation Review Board and would be non-binding on the municipality. Given the ultimate result that may flow from the procedure under section 34 for heritage purposes, that is the complete reversal of the heritage designation, there is even more need to ensure that the section only applies to those situations that clearly fall within its scope. The majority says that it made "practical sense" for Clublink to forgo a direct challenge to the designation through its attempt to shelter its goals through its section 34 application. With respect, it makes practical sense for Clublink to do so only if Clublink is permitted, as the majority would allow it, to do indirectly what it chose not to do directly. And in the process to invoke an entirely different appeal route — a factor that the majority otherwise relies on to support its conclusion.

Fifth, to the degree that meanings given to the word "structure" outside the OHA have any relevance to this interpretative exercise, a golf course does not fit comfortably with the common understanding of the word. For example, The Concise Oxford English Dictionary defines "structure" as "a building or other object constructed from several parts".

It also follows, on this point, that the use of the word "structure" in association with the word "building" in section 34 suggests a similarity of intended meaning for the two terms. It suggests that structure was intended to capture other man-made objects not encompassed within the term "building" such as, for example, a bridge.

The dissent earlier eschewed placing undue reliance on interpretations of the word "structure" reached by other courts in other cases dealing with other statutes. The dissent will permit itself one reference, however, only to show that it is not alone in its interpretation of the word "structure" as it relates to golf courses. In interpreting the same word when used in an insurance policy in J.M.D.S. Services Inc. v. Prudential Assurance Co. of England Property & Casualty (Canada), Darichuk J. said:

Absent such an assigned meaning, within the context of the insurance policy, this word should receive its ordinary, popular meaning of being an edifice or building of some kind, built or constructed on, above or below the surface of the land -- not the golf course itself or the trees, shrubs, flowers or plants growing thereon.

Before leaving this point, the dissent will say that it is aware that section 47 of the OHA defines "property" as "real property, but does not include buildings or structures other than ruins, burial mounds, petroglyphs and earthworks". This definition could be said, albeit very obliquely, to suggest that structures include land, e.g., burial mounds and earthworks. Indeed, the majority places considerable reliance on the use of the word "earthworks" in defence of its conclusion.

The dissent makes two observations in response to that reliance. One is that this definition appears in Part VI of the OHA, not in Part IV where sections 33 and 34 are found. Part VI deals with conservation of resources of archaeological value, an entirely different concern than Part IV addresses. The other is that the inclusion of this definition in Part VI demonstrates that the legislature was capable of defining structure expressly, and in a specific way, when it wished to do so for a particular purpose. It clearly did not feel it necessary to do so for the purpose of Part IV but rather chose to leave the word to its ordinary meaning within the context of that Part of the statute. One cannot, in the dissent's view, use the separate definition of property in Part VI to alter the definition of property in Part IV when it is clear that the legislature adopted separate and distinct definitions for separate and distinct purposes.

Sixth, and finally, to uphold the application judge's decision and order would not further the purpose and goals of the OHA. If a golf course is a "structure" for the purpose of section 34 of the OHA because it is "constructed" there is no immediately apparent limit to what types of objects, items, landscapes, or features could be qualified as "structures". It would seriously circumscribe the application of section 33 in favour of a correspondingly expansive, and largely unfettered, right in the owners of heritage properties under section 34, from a practical point of view, to deal with their property without reference to the effect on the property's heritage attributes. It would leave section 33 with a very limited meaning. Indeed, from a practical point of view, it would leave section 33 with very little real-world application and thus be contrary to the "wide and liberal interpretation" urged by Cory J.A. in Toronto College Street Centre.

In the end result, the very nature of Glen Abbey does not permit it to be properly characterized as a structure within the meaning of section 34. Any contrary conclusion does not accord with common sense. Rather, approached sensibly, Glen Abbey is a component of a designated property that Clublink seeks to "alter" in a profound way that is "likely to affect the property's heritage attributes". That intention falls squarely within the terms of section 33. Accordingly, if Clublink wishes to obtain permission to proceed as it plans, then it must seek the permission of the Town to do so under section 33 of the OHA.

Conclusion

The dissent would allow the appeal and set aside the order below, with costs of the appeal to the Town fixed in the agreed amount of $35,000, plus disbursements and HST. The parties have advised that they have agreed on the appropriate disposition of the costs of the original application.

Final Disposition

Appeal dismissed.