Tremblay et al. v. The Corporation of the Town of Lakeshore et al.

Tremblay et al. v. The Corporation of the Town of Lakeshore et al.; The Roman Catholic Episcopal Corporation of the Diocese of London in Ontario, Intervenor [Indexed as: Tremblay v. Lakeshore (Town)]

68 O.R. (3d) 109

[2003] O.J. No. 4292

Divisional Court File No. 189/03

Court File No. 02-GD-54677

Ontario Superior Court of Justice

Divisional Court

Blair R.S.J., Benotto S.J. and Beaulieu J.

November 4, 2003

Municipal law -- Heritage designation -- Municipality may not impose as pre-condition to heritage designation that owner consent to designation -- Ontario Heritage Act, R.S.O. 1990, c. O.18.

In the summer of 2002, the Roman Catholic Diocese of London sold a small church in the village of St. Joachim. It was a condition of the sale that the church be demolished. The parishioners formed an organization to save the church and asked the Town of Lakeshore to designate the church under the Ontario Heritage Act. The Town Council, however, passed a resolution that a request from the owner was a pre-condition to any heritage designation. The applicants sought judicial review and submitted that the Council had no authority to impose this condition.

Held, the application should be granted. [page110]

The decision to designate a property under the Ontario Heritage Act is discretionary. However the discretion must be exercised within the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society and the principles of the Canadian Charter of Rights and Freedoms. The immediate case could be determined on traditional administrative law principles. The standard of review of intra vires municipal action was one of patent unreasonableness. In requiring the consent of the owner as a pre-condition to designation, the Town imposed a condition contrary to the intent of the Act and placed an unreasonable obstacle on its own discretionary powers thereby fettering its discretion and aborting the process intended by the Act. It was patently unreasonable to impose this condition, and accordingly the application for judicial review should be granted.

APPLICATION for judicial review.

Cases referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, 243 N.R. 22; Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 2001 21164 (ON CA), 56 O.R. (3d) 577, 208 D.L.R. (4th) 577, 89 C.R.R. (2d) 1 (C.A.), revg (1999), 1999 19910 (ON SCDC), 70 C.R.R. (2d) 136 (Ont. Div. Ct.); Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, 76 B.C.L.R. (3d) 201, 183 D.L.R. (4th) 1, 251 N.R. 42, [2000] 6 W.W.R. 403, 9 M.P.L.R. (3d) 1; Padfield v. Minister of Agriculture, Fisheries and Food, [1968] A.C. 997, [1968] 1 All E.R. 694, 112 Sol. Jo. 171 (H.L.); St. Peter's Evangelical Lutheran Church (Trustees of) v. City of Ottawa, 1982 60 (SCC), [1982] 2 S.C.R. 616, 140 D.L.R. (3d) 577, 45 N.R. 271, 20 M.P.L.R. 121

Statutes referred to Ontario Heritage Act, R.S.O. 1990, c. O.18

Authorities referred to Shipley, R., and K. Reyburn, The Loss of Heritage Properties in Ontario (2002)

Ronald F. Caza and Rodrigue Escayola, for applicants. J. James Renick and Kirk W. Walstedt, for respondents. Norman A. Pizzale and Daniel J. McNamara, for intervenor.

BENOTTO S.J.: --

Introduction

[1] There is a small church in the village of St. Joachim near Windsor. It is an important symbol of the spiritual and cultural life of the local French-speaking community. The Roman Catholic Diocese of London wishes to demolish the Church. The parishioners are seeking to "save" it and formed an organization "SOS Eglises" [See Note 1 at end of document]. This group asked the Town of Lakeshore to designate the building under the Ontario Heritage Act, R.S.O. 1990, c. O.18. [page111] A number of Town Council meetings ensued during which the Town refused the designation. The Town took the position that it could not entertain a request without the consent of the Diocese (which owned the property). A demolition permit was issued. The demolition has been stayed pending this hearing. The applicants seek an order from this court referring the matter back to the Town for consideration of the issue of heritage designation.

Background

[2] The French community in the Windsor area was established over 300 years ago. It is fragile and struggles to survive in a predominately Anglophone environment. For this community, the Church is a powerful source of identity and strength. L'Eglise St. Joachim was built by the parishioners' forefathers 120 years ago with little money and much co-operative work. Once built, it became the centre of the French community.

[3] In 1996, the Roman Catholic Diocese of London implemented a plan called "clustering". L'Eglise St. Joachim was consolidated with two other parishes. A "Cluster Advisory Board" was formed. The Cluster Advisory Board decided to present three options to the parishioners of the consolidated churches to determine how to best meet the needs of the new Faith Community. The three options given were as follows: 1. Renovate all three church buildings; 2. Renovate only Annonciation as it is the largest, and dispose of the other two existing lands and buildings; and 3. Build a new parish complex, which would involve disposing of the three existing lands and buildings.

[4] An architect was retained to do a report on the condition of L'Eglise St. Joachim. Because of its state of repair, it was closed in April 2000 and has never been reopened. Meetings were held to discuss the fate of the Church. In September, a vote was held whereby 65 per cent of the people who voted (1/2 of the active parishioners of the new parish group) voted to construct a new parish complex. After this vote, the applicants formed SOS.

The Town Council

[5] On April 24, 2001, the applicants asked Town Council to designate L'Eglise St. Joachim pursuant to the Ontario Heritage Act. At that meeting, representatives of the Diocese advised that the decision to close the Church was final, that a new church would be built and that the Diocese was willing to sell the building.

[6] On May 7, 2001, the Town planner outlined matters of heritage concerns. The Town passed a resolution authorizing her to [page112] invite a Provincial Conservation Planner to another meeting to appoint a Local Architectural Conservation Advisory Committee ("LACAC"). This process continued in September and October 2001 and again in February 2002.

[7] At the Lakeshore Council meeting held March 12, 2002, David Tremblay, supported by other members of SOS also in attendance at the meeting, again requested that the St. Joachim Church be designated under the Ontario Heritage Act. Council refused to designate the Church over the objections of the owner and passed a resolution to require the owner to consent to the application for designation under the Ontario Heritage Act. The Town passed the following resolution:

That a request for heritage designation of a property be made directly to the Council of the Town of Lakeshore. Such a request must include the following:

a) this request be made by the owner of the property.

[8] The applicants say that the Council had no authority to impose this condition on the application.

[9] In the summer of 2002, the Diocese sold the Church and made demolition a condition of sale. A demolition permit was issued on October 2002 but stayed pending this application.

Standard of Review

[10] The respondents argue that the standard of review is patent unreasonableness [See Note 2 at end of document].

[11] The applicants suggest indirectly that issues of law are involved which make the standard of review correctness. The issues of law are the failure of the Town to consider the constitutional protection of the French-speaking minority and the resolution to require the owner's consent which was ultra vires its authority.

[12] For the reasons articulated in para. 25 of these reasons, I conclude that the applicable standard of review is "patent unreasonableness".

Analysis

[13] The Ontario Heritage Act, proclaimed in 1975, was Ontario's response to a worldwide effort at preserving for future generations works which have acquired cultural significance [See Note 3 at end of document]. [page113]

[14] The Ontario Heritage Act gives municipalities the power to designate properties within a municipality to be of historic or architectural value or interest. For the purpose of exercising that power, the Act provides that municipalities may appoint a local architectural conservation advisory committee to advise the Council on matters relating to the Act.

[15] The purpose of the Act is to provide for the conservation, protection and preservation of the heritage of Ontario. In order to protect the heritage of Ontario, municipalities have been given the power to designate the properties of their choice and thus to suspend certain private property rights. Those provisions of the Act must be applied in such a way as to ensure the attainment of the legislature's objectives.

[16] Designation of a property is a procedurally simple process. If a municipal council intends to designate a property it must consult with its advisory committee, if it has one; it must give notice as prescribed; and, if no objection is filed within 30 days of the notice, the municipal council passes a by-law designating the property. If an objection is filed the matter is referred to the Conservation Review Board for a hearing. The Conservation Review Board holds a hearing and makes recommendations back to the municipal council which then makes its final decision without a further hearing. If a building is designated historical, the Town can only prohibit demolition for 180 days after which it must repeal the designation by-law.

[17] Ironically, therefore, the designation of a building as a heritage site does not prevent the demolition of the site by the owner once 180 days have passed. This is why the Town takes the position that the owner must apply or consent.

[18] The decision to designate a property is clearly discretionary. However, there are limits on the exercise of discretion where fundamental constitutional and societal interests are at stake. That discretion must be exercised "with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter" (emphasis added) [See Note 4 at end of document].

[19] These underlying principles include those articulated in the Montfort case [See Note 5 at end of document], namely, a respect for and protection of [page114] the French-speaking minority in Ontario and the linguistic duality as a fundamental principle of Canadian society.

[20] The applicants argue that the Town failed to take into account the Montfort principles in refusing to designate L'Eglise St. Joachim under the Act.

[21] The Town takes the position that it did apply the unwritten constitutional provisions in its decision. It claims to have been conscious of the concerns of the French minority.

[22] In my opinion, this case is to be determined on traditional administrative law principles rather than the constitutional analysis. The latter issue is not really before us, as the entire process was aborted by the Town's decision to impose a condition on the application for heritage designation. Thus, a consideration of the "Montfort" principles is not engaged. The decision is flawed and must be set aside on administrative law principles.

[23] Requiring the consent of the owner is not consistent with an overall reading of the Act or its purpose. Indeed, the Act contemplates notice to the owner, possible objections, and a hearing process [See Note 6 at end of document].

[24] The object of the Act is the conservation and protection of the heritage of Ontario. This may interfere with individual property rights [See Note 7 at end of document]. Accordingly, in requiring the consent of the owner as a pre-condition to designation, the Town placed an unreasonable obstacle on its own discretionary powers thereby fettering its discretion and aborting the process intended by the Act.

[25] The action of the Town did not breach a constitutional right and thus, there was no loss of jurisdiction. Our standard of review is as follows: "The standard upon which courts may entertain a review of intra vires municipal actions should be one of patent unreasonableness." [See Note 8 at end of document].

[26] The Town imposed a condition contrary to the intent of the legislation. By imposing a condition on the application that was not provided for at law, the Town aborted the decision-making process. The owner's consent is not a pre- condition. Indeed, one can think of a variety of situations where the owner would not want the heritage designation. [page115]

[27] The Town argues that Council's resolution was reasonable in light of the entire context of the Act: namely, that the owner can ultimately demolish the building notwithstanding the previous designation. However, reading the Act as a whole discloses an assumption that the owner may not consent. Moreover, the very purpose of the Act must be to balance the interests of the public, community and the owner. This balancing would not be necessary if the owner's consent were a precondition.

[28] It was both unreasonable and patently unreasonable to impose this condition. The application for judicial review is therefore allowed, and the matter is referred back to Town Council for re-consideration in accordance with the foregoing.

[29] If parties cannot agree on costs, they may exchange and file brief written submissions within 30 days.

Order accordingly.

Notes

Note 1: "Save Our Sanctuaries".

Note 2: Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, 183 D.L.R. (4th) 1.

Note 3: The Loss of Heritage Properties in Ontario, Robert Shipley, Ph. D.; Karen Reyburn, M.A., April 2002, at p. 7.

Note 4: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, at p. 855 S.C.R.

Note 5: Lalonde v. Ontario (Commission de Restructuration des services de santé) (2001), 2001 21164 (ON CA), 56 O.R. (3d) 577, 208 D.L.R. (4th) 577 (C.A.).

Note 6: Padfield v. Minister of Agriculture, Fisheries and Food, [1968] a.C. 997, [1968] 1 All E.R. 694 (H.L.), at p. 1030 A.C.

Note 7: St. Peter's Evangelical Lutheran Church (Trustees of) v. City of Ottawa, 1982 60 (SCC), [1982] 2 S.C.R. 616, 140 D.L.R. (3d) 577.

Note 8: Nanaimo (City) v. Rascal Trucking Ltd., 2000 SCC 13, [2000] 1 S.C.R. 342, 183 D.L.R. (4th) 1, at para. 37.