CITATION: Toronto (City of) v. 445 Adelaide Street West Inc. 2022 ONSC 1471

COURT FILE NO.: Div. Ct. 327/20

DATE: 2022/03/16

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.J. Corbett, Perell, and Sheard, JJ.

IN THE MATTER OF an appeal under s. 37 of the Local Planning Appeal Tribunal Act, 2017, S.O. 2017, c. 23, Sch. 1, as amended, from a decision of the Local Planning Appeal Tribunal, dated April 14, 2020.

AND IN THE MATTER OF an appeal to the Local Planning Appeal Tribunal from the City of Toronto's refusal or neglect to make a decision in response to an application to amend the Zoning Bylaw in relation to properties municipally known as 445 – 451 Adelaide Street West in the City of Toronto under s. 34(11) of the Planning Act, R.S.O. 1990, c. P.13 as amended (the "Planning Act Appeal".

BETWEEN:

CITY OF TORONTO

Appellant

• and –

445 ADELAIDE STREET WEST INC., N. ALFRED APPS, JOSEPH AND SALWA MUSA, and TORONTO STANDARD CONDOMINIUM CORPORATION No. 1984

Respondents

Daniel Elmadany, Joanna Wice, and Christopher Henderson for the Appellant

Timothy Hill, Andrea Skinner, and Matthew Helfand for the Respondent, 445 Adelaide Street West Inc.

HEARD: February 2, 2022

PERELL, J.

REASONS FOR DECISION

Contents

A. Introduction and Overview.. 3

B. Relevant Statutory Provisions. 4

C. Relevant Planning Instruments. 4

D. Cultural Heritage Value and Land Use Planning. 4

1. Cultural Heritage Value and the Ontario Heritage Act 4

2. Cultural Heritage Value and the Planning Act 6

3. Cultural Heritage Value and LPAT Practice and Procedure. 7

E. Facts. 8

1. The Development Site. 8

2. Land Planning History of 445 Adelaide’s Development Site. 8

F. The LPAT’s Decision. 11

G. Jurisdiction and Standard of Appellate Review.. 13

H. The City’s Submissions. 14

I. 445-Adelaide’s Submissions. 15

J. Discussion and Analysis. 16

1. Overview.. 16

2. Preliminary Observations. 17

3. The Integration of the Planning Act and the Ontario Heritage Act 18

4. My Rosedale Neighbourhood v. Dale Inc. 20

K. Conclusion. 21

Schedule “A” – Relevant Statutory Provisions. 22

(a) Ontario Heritage Act, R.S.O. 1990, c. O.18. 22

(b) O. Reg. 9/06 (Criteria for Determining Cultural Heritage Value or Interest) 28

(c) Planning Act, R.S.O. 1990, c. P.13. 29

Schedule “B” – Relevant Planning Instruments. 32

(a) Provincial Policy Statement, 2014. 32

(b) Growth Plan for the Greater Golden Horseshoe. 32

(c) City of Toronto Official Plan. 33

(d) King-Spadina Secondary Plan. 35

A. Introduction and Overview

[1] 445 Adelaide Street West Inc. (“445-Adelaide”) applied to the City of Toronto for an amendment of the City’s zoning by-law to permit a 14-storey hotel on a development site known as 445-451 Adelaide Street West.[^1] The existing buildings on 445-Adelaide’s development site (pictured below) were comprised of the John P. Jackson House (to the left in the photo) and the adjacent Eliza Lennox Houses.

[2] The City opposed the rezoning because 445-Adelaide’s plan was to demolish the two existing buildings on the site, however, the City considered that the buildings had cultural heritage value, and the City intended and did designate them as heritage properties pursuant to s. 29 of the Ontario Heritage Act.[^2]

[3] Thus, given the City’s interest in preserving the existing buildings because of their cultural heritage value, the City refused or neglected to amend its zoning by-law as requested by 445-Adelaide. Pursuant to s. 34 (11) of the Planning Act,[^3] 445-Adelaide appealed to the Local Planning Appeal Tribunal (“LPAT”) for a rezoning.

[4] Given that 445-Adelaide’s development plan would entail demolition of the existing buildings, the City requested an adjournment of 445-Adelaide’s zoning appeal so that the demolition permission process of the Ontario Heritage Act could be followed. 445-Adelaide opposed the adjournment, and the LPAT did not adjourn the zoning appeal.

[5] The zoning appeal hearing went ahead, and the LPAT’s decision was to rezone the development site to permit the hotel development. The zoning approval was made conditional on 445-Adelaide obtaining a demolition permit pursuant to the Ontario Heritage Act process.

[6] In this appeal, the City seeks to set aside the LPAT’s decision.

[7] The Divisional Court granted leave to appeal with respect to the following two questions:[^4]

a. Did the LPAT err in its consideration and application of the Ontario Heritage Act in respect of its findings regarding 445 Adelaide Street West and 447-453 Adelaide Street West in light of By-Laws 114-20 and 115-20 passed by the City pursuant to s. 29 of the Ontario Heritage Act designating the properties as Heritage Properties under part IV of the Ontario Heritage Act?

b. Did the Tribunal err in its interpretation of provincial and municipal heritage planning provisions that include: the Provincial Policy Statement, 2014 issued under the Planning Act; A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019 issued under s. 7 of the Places to Grow Act, 2005, S.O. 2005, c.13; and the City of Toronto’s Official Plan and King-Spadina Secondary Plan, adopted and approved pursuant to s. 17 of the Planning Act?

[8] For the reasons that follow, the City’s appeal is granted. The answer to the first question is that the LPAT exceeded its jurisdiction under the Planning Act and its decision should be set aside. That answer is dispositive of the appeal. It is not necessary for this court to address the second question.

B. Relevant Statutory Provisions

[9] For the purposes of the hearing before the LPAT and for this appeal, the relevant statutory provisions are set out in Schedule “A”.

[10] Schedule “A” includes excerpts from: (a) the Ontario Heritage Act; (b) Ont. Reg. 9/06: (Criteria for Determining Cultural Heritage Value or Interest), a regulation pursuant to the Ontario Heritage Act; and (c) the Planning Act.

C. Relevant Planning Instruments

[11] 445-Adelaide’s development site was subject to the following planning instruments : (a) Provincial Policy Statement (2014); (b) a provincial plan known as A Place to Grow: Growth Plan for the Greater Golden Horseshoe, 2019; (c) the City of Toronto Official Plan, and (d) the City’s King-Spadina Secondary Plan.

[12] For the purposes of the hearing before the LPAT and for this appeal, the relevant planning instruments are set out in Schedule “B”.

D. Cultural Heritage Value and Land Use Planning

[13] In Ontario, in so far as land use planning is concerned, heritage preservation is mainly regulated by two statutes and by those statutes’ associated regulations and planning instruments. The two statutes are the Ontario Heritage Act and the Planning Act.

1. Cultural Heritage Value and the Ontario Heritage Act

[14] The overarching purpose of the Ontario Heritage Act is to provide for the conservation, protection and preservation of the heritage of Ontario, and to this end, the Act confers broad powers upon municipalities to designate properties as being of cultural heritage value or interest, thereby interfering with private property rights.[^5]

[15] The scheme of the Ontario Heritage Act has two discrete branches (Parts IV and V of the Act) with respect to land use planning and heritage conservation. Properties can be recognized for their individual cultural heritage value (Part IV of the Act), and, or they can be recognized as a part of a collective “Heritage Conservation District” (Part V of the Act). Part IV of the Ontario Heritage Act sets out the process for individually “listing” and “designating” a property. Part V of the Act sets out the process for establishing a Heritage Conservation District.

[16] For the purposes of this appeal, the most pertinent matter is Part IV of the Ontario Heritage Act. Pursuant to Part IV, s. 29 of the Ontario Heritage Act, a municipality may by by-law designate a property to be of cultural heritage if the property meets the prescribed criteria for determining whether a property has cultural heritage value. Ont. Reg. 9/06 prescribes the criteria for determining whether a property has cultural heritage value or interest. In the immediate case, the City enacted by-laws designating the John P. Jackson House and the Eliza Lennox Houses as heritage properties.

[17] There is a prescribed process for the enactment of the by-law, and if the by-law is enacted then a person who objected to the by-law may appeal to LPAT. On the appeal, pursuant to s.29(15) of the Ontario Heritage Act, after holding a hearing, the LPAT shall: (a) dismiss the appeal; (b) allow the appeal and repeal the by-law in whole or in part; or (c) allow the appeal and amend the by-law in whole or in part.

[18] Pursuant to s. 27 of the Ontario Heritage Act, the clerk of the municipality shall keep a register that includes, among other things, properties that the municipality has designated by by-law.

[19] The Ontario Heritage Act provides that no owner of property designated under s. 29 of the Act shall remove or demolish a building or structure on the property unless the owner receives consent from municipality.

[20] If the municipality does not consent to an owner’s application to demolish the structures on its property, the owner may appeal to the LPAT.

[21] On the appeal, pursuant to s. 34.1 (5) of the Ontario Heritage Act, after holding a hearing, the LPAT may dismiss the appeal or order that the municipality consent to the demolition or removal without terms and conditions or with such terms and conditions as the LPAT may specify in the order.

[22] If the LPAT approves the demolition application, then pursuant to s. 34.3 (1) of the Ontario Heritage Act, the municipality must repeal the by-law under s. 29 of the Act designating the property as being of cultural heritage value or interest.

[23] As explained by the Court of Appeal in Clublink Corporation ULC v. Oakville (Town),[^6] (where the issue was whether a golf course was a “structure” that could be designated as being of cultural heritage value,) the Ontario Heritage Act was first enacted as the Ontario Heritage Act, 1974,[^7] and the statute was substantially amended in 2005 through the Ontario Heritage Amendment Act, 2005.[^8] As explained by Justice Harvison Young, under the original scheme of the Act, the municipality could designate a property as being of cultural heritage value with the effect of delaying any demolition of the property to afford the municipality the opportunity to expropriate the property.

[24] As explained by Justice Harvison Young, in Clublink Corporation ULC v. Oakville (Town), under the current scheme of the Ontario Heritage Act, which was introduced in 2005, the municipality can prohibit demolition by designating the property, but the landowner is afforded a right to apply for the municipality’s consent to demolition, and if the municipality’s refuses consent, then the landowner can appeal to the LPAT (formerly the Ontario Municipal Board). If the appeal of the municipality’s refusal to consent is successful, then the designation by-law is repealed. As Justice Harvison-Young explained at paragraphs 57 and 58 of her judgment in the Clublink case:

57. 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 s. 34.

58. 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.

2. Cultural Heritage Value and the Planning Act

[25] The Planning Act directs the LPAT when it is carrying out its responsibilities under the Act to have regard and to recognize the decision-making authority of municipalities as to matters of provincial planning, policy, and interest, which include the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest.

[26] Subsections 1.1 (b), (c) and (f) of the Planning Act stipulate that included among the purposes of the Planning Act are: (a) providing for a land use planning system led by provincial policy; (b) integrating matters of provincial interest in municipal planning decisions; and (c) recognizing the decision-making authority of municipal councils in planning.

[27] Section 2 of the Planning Act stipulates that the LPAT (and others) in carrying out its responsibilities under the Act shall have regard to matters of provincial interest. The matters of provincial interest include: “the conservation of features of significant, architectural, cultural, historical, archaeological or scientific interest.”

[28] Section 2.1 of the Planning Act stipulates that when the LPAT makes a decision that relates to a planning matter, it shall have regard to any decision that is made under the Planning Act by a municipal council that relates to that planning matter and any information that the municipal council considered in making its decision.

[29] Subsection 3(1) of the Planning Act empowers the ministers of the provincial government to issue policy statements relating to municipal planning that in the opinion of the Minister are of provincial interest.

[30] Subsection 3(5) of the Act requires the LPAT’s decisions about planning matters shall be consistent with the provincial policy statements and shall conform with the provincial plans that are in effect or shall not conflict with them.

3. Cultural Heritage Value and LPAT Practice and Procedure

[31] For the analysis later in these Reasons for Decision, it shall be helpful to keep in mind that from the perspective of land use planning practice and procedure, the LPAT has jurisdiction with respect to a variety of land planning approvals, including matters of official plans, zoning, minor variances, site plan approvals, and subdivision control.

[32] It shall also be helpful to keep in mind for the analysis later in these Reasons for Decision that from the perspective of land use planning practice and procedure, the determination of cultural heritage value might come before the LPAT in three ways, the first of which does not engage the Ontario Heritage Act.

[33] First, the matter of cultural heritage value might come before the LPAT where there has been no designation of the property under the Ontario Heritage Act and the landowner seeks an approval under the Planning Act.

[34] Second, the matter of cultural heritage value might come before the LPAT where there has been a designation of the property under the Ontario Heritage Act and the landowner in addition to seeking some Planning Act approval is appealing: (a) the municipality’s designation of the property; or (b) the municipality’s refusal to allow demolition of the designated property under the Ontario Heritage Act.

[35] Third, the matter of cultural heritage value might come before the LPAT where the landowner is seeking some Planning Act approval and there has been a designation of the property under the Ontario Heritage Act, but the landowner has not appealed: (a) the designation of the property; or (b) the municipality’s refusal to allow demolition of the designated property.

[36] As the description below of the facts will reveal, the case at bar is about the third way that the matter of cultural heritage value may come before the LPAT. As the analysis below of the law will reveal, the third way the matter of cultural heritage value might come before the LPAT is rife with problems.

[37] In the immediate case, 445-Adelaide’s property had been designated under the Ontario Heritage Act, but it took no steps to exercise its rights under the Ontario Heritage Act and sought to have the cultural heritage value of its property dealt with exclusively under the Planning Act, notwithstanding there had been a designation of the property under the Ontario Heritage Act.

E. Facts

1. The Development Site

[38] The properties at issue are municipally known as 445–451 Adelaide Street West, located on the south-west corner of Adelaide Street West and Morrison Street, west of Spadina Avenue in the City of Toronto.

[39] For planning purposes, 445-Adelaide’s development site is situated within the area identified in the King Spadina Secondary Plan as the West Precinct, which are the lands within the secondary plan located west of Spadina Avenue, generally bounded by Queen Street to the north, Bathurst Street to the west, Front Street to the south and Spadina Avenue to the east.

[40] 445-Adelaide’s development site is designated as “Regeneration Area (RA)” in the City’s Official Plan, an area where intensification is encouraged.

[41] The development site is currently occupied by two buildings that are used for commercial and residential purposes.

a. There is a 2.5-storey detached house at 445 Adelaide Street West, known as the John P. Jackson House, which was originally built around 1880 in the High Victorian Gothic Bay & Gable style.

b. There is a row of four attached townhouses that extend from 447 Adelaide Street West into the adjacent property at 453 Adelaide Street West, known as the Eliza Lennox Houses, which were built in 1906 in the Edwardian Classical style.

[42] The John P. Jackson House and the Eliza Lennox Houses are designated as having cultural heritage value or interest by By-laws 114-20 and 115-20 respectively, passed pursuant to s. 29 of the Ontario Heritage Act.

2. Land Planning History of 445 Adelaide’s Development Site

[43] On October 2, 2012, City Council initiated a study and public consultation process, known as the King-Spadina Heritage Conservation District Study. The study identified the John P. Jackson House and Eliza Lennox Houses as contributing to the cultural heritage value, heritage attributes, and integrity of the King-Spadina District of the City of Toronto.

[44] On December 15, 2016, City Council adopted and enacted by-law 1186-2016, the District Study Area By-law, pursuant to s. 40.1 of the Ontario Heritage Act. The by-law identified 445-Adelaide’s development site as having the potential to contribute to the cultural heritage value of the area. The by-law identified 445-Adelaide’s development site, along with approximately 300 other properties, as “having the potential to be contributing properties within a King-Spadina Heritage Conservation District.” The by-law prohibited demolishing or removing buildings or structures during a one year study period.

[45] On June 22, 2017, following the City's study and public consultation process, the Toronto Preservation Board recommended that the City designate the King-Spadina District under Part V of the Ontario Heritage Act.

[46] On August 1, 2017, 445-Adelaide applied to the City to amend the zoning of 445-Adelaide’s development site. The development plan was to demolish the John P. Jackson House and the Eliza Lennox Houses on the development site for the construction of a new, 11-storey office building.

[47] In support of its application for a rezoning, 445-Adelaide filed a Heritage Impact Statement in accordance with the City’s Heritage Impact Assessment Terms of Reference. 445-Adelaide’s expert opined that the heritage attributes of the John P. Jackson House and the Eliza Lennox Houses on the development site did not possess sufficient design, associative, or contextual value to merit designation under Part IV of the Ontario Heritage Act.

[48] On October 2, 2017, City Council adopted the Toronto Preservation Board recommendations and designated the King-Spadina Heritage Conservation District under Part V of the Ontario Heritage Act. 445-Adelaide’s development site was included within the designated district.

[49] 445-Adelaide and others appealed the designation of the District under the Ontario Heritage Act. The appeals remain outstanding, and the District designation is not in force pending the resolution of the appeals. (The appeals are ongoing, and a case management conference was scheduled for January 2022.)

[50] City Council failed to make a decision on the rezoning application within the prescribed statutory timeframe, and on November 29, 2017, 445-Adelaide filed an appeal to the Ontario Municipal Board (now the LPAT), pursuant to s. 34(11) of the Planning Act.

[51] On December 5, 2017 the John P. Jackson House and the Eliza Lennox Houses and approximately 90 other properties were listed were listed in the City of Toronto's Heritage Register, pursuant to s. 27(1.2) of the Ontario Heritage Act.

[52] On February 14, 2019, the LPAT made a procedural order in 445-Adelaide’s zoning appeal. The procedural order included an issues list that identified the City's concerns about the conservation of John P. Jackson House and the Eliza Lennox Houses. The list contained approximately 70 issues or sub-issues, including 20 issues that related to heritage planning and conservation. The zoning appeal was scheduled for a hearing to begin on February 18, 2020. The procedural order permitted 445-Adelaide to make revisions to its proposal to address the City's concerns on the issues list. The procedural order required 445-Adelaide to serve any revised plans by November 1, 2019.

[53] On November 1, 2019, 445-Adelaide filed revised architectural plans for its development proposal, proposing a 14-storey hotel development on the development site rather than an 11-storey office building. The revised proposal contemplated the demolition of all existing buildings on the development site, notwithstanding the City’s concerns.

[54] On December 2, 2019, 445-Adelaide filed a formal resubmission of the revised architectural plans with the City, together with updated reports, including a Heritage Impact Assessment Addendum.

[55] On December 2, 2019, the Toronto Preservation Board recommended to City Council that the City state its notice of intention to designate the development site as being of cultural heritage value or interest under s. 29 of the Ontario Heritage Act.

[56] On December 17, 2019, by resolution City Council stated its intention to designate the development site in accordance with s. 29 of the Ontario Heritage Act.

[57] On December 20, 2019, the City advised 445-Adelaide of the City's intention to designate the development site under s. 29 of the Ontario Heritage Act. The City sought 445-Adelaide’s consent to adjourn the pending Planning Act appeal to permit 445-Adelaide to seek the required authorizations for the demolitions of the buildings on the development site. 445-Adelaide declined to consent to an adjournment of the Planning Act appeal.

[58] On December 24,2019, the City served its notices of intention to designate the development site and the City published the notice on the City's public notice website.

[59] On January 9, 2020, the City served a notice of motion seeking an adjournment of 445-Adelaide’s zoning appeal sine die pending appropriate permissions being sought and determinations made under the Ontario Heritage Act for the demolition of John P. Jackson House and the Eliza Lennox Houses.

[60] On January 16, 2020, the LPAT dismissed the City's pre-hearing motion to adjourn the Planning Act Appeal pending appropriate applications under the Ontario Heritage Act for the demolition of the buildings on the development site. Written reasons were to follow, but the reasons were not issued until after the hearing of the Planning Act Appeal.

[61] In its adjournment refusal reasons, which were issued five and a half months after the zoning appeal hearing was completed, the LPAT stated:

The Tribunal is not persuaded, as was the City’s contention, that the public interest would be better served if the approvals pursuant to the respective Acts were sequenced such that the considerations under the OHA were first determined, or that Council’s ultimate discretion would be somehow fettered if the appeal under the Planning Act were to proceed. Council had clearly directed Legal Counsel and staff with respect to appearing before the Tribunal to oppose the proposal in 2018.

There are interests held by the other three Parties as reflected in the 33 issues beyond the heritage issues, which are properly before the Tribunal, and of no concern to the Conservation Review Board.

The eleventh-hour Notice of Intention to Designate could be construed as being launched to frustrate the appeal rights of 445 Adelaide Street West Inc., particularly in light of the fact that the properties of potential heritage interest are protected from demolition or alteration and are certainly protected while the scheduled matter is heard and decided. On January 29, 2020, approximately 3 weeks before the Tribunal hearing was scheduled to commence, Council enacted two designation by-laws affecting the Property.

[62] The last day to file an objection to the proposed designation of the development site was January 23, 2020. Having received no objection to the designations, on January 29, 2020, City Council enacted the Designation By-laws, designating the development site as being of cultural heritage value or interest under s. 29 of the Ontario Heritage Act.

[63] 445-Adelaide’s zoning appeal began on February 18, 2020 before Members Swinkin and Chipman. The hearing was completed on March 6, 2020.

[64] Note: It shall be fundamentally important to note that the only issue before the LPAT was 444-Adelaide’s zoning appeal. Although the LPAT has jurisdiction with respect to certain matters under the Ontario Heritage Act, there were no concurrent proceedings under the Ontario Heritage Act and the LPAT was exclusively exercising its jurisdiction under the Planning Act.

[65] The hearing before the LPAT focused on two main issues: (a) issues relating to the proposed hotel development for the property; and (b) how to treat the John P. Jackson House and Eliza Lennox Houses having regard to their recent designation under the Ontario Heritage Act.

a. At the hearing, 445-Adelaide proffered the evidence of Michael McClelland, an expert in heritage conservation. He reviewed the criteria for designation set out in Ont. Reg. 9/06 (Criteria for Determining Cultural Heritage Value or Interest) and opined that John P. Jackson House and the Eliza Lennox Houses “did not bear significant heritage attributes” and as a consequence “did not attract the conservation obligation which was being advanced by the City.” He opined that these buildings did not require retention in situ, which was the position advanced by the City.

b. At the hearing, it was the City’s position that any property which is the subject of designation under Part IV or Part V of the Ontario Heritage Act is a heritage resource that must, as a matter of provincial planning policy, be retained in situ. Therefore, it submitted that the Tribunal could not authorize a rezoning that did not embrace retention of the existing structures.

c. The City did not call any of the City staff who were involved in conducting the evaluation of John P. Jackson House and the Eliza Lennox Houses for Ontario Heritage Act listing or designation. The City put forward no expert evidence to rebut the testimony of Mr. McClelland.

[66] On April 14, 2020, the LPAT issued its reasons and granted 445-Adelaide’s zoning appeal.

[67] On August 14, 2020, the LPAT issued its written reasons denying the City's adjournment request that, as noted above, had been made in January 2020.

[68] To date, the Developer has not applied for demolition of the buildings on the development site. under s. 34(1) of the Ontario Heritage Act.

[69] At no time was there: (a) an Ontario Heritage Act appeal before the LPAT of the City's decision to designate the development site under s. 29 of the Ontario Heritage Act; or (b) an appeal of a decision of City Council to refuse a demolition application under s. 34 of the Ontario Heritage Act.

F. The LPAT’s Decision

[70] In its decision, the LPAT stated that the “key to the hearing was understanding and applying the relevant heritage policy from the provincial planning policy instruments and the City’s Official Plan. In this regard, the LPAT concluded that having due regard to s.2 of the Planning Act with particular reference to the matter of heritage conservation, 445-Adelaide’s development proposal was consistent with the relevant policies of the provincial policy statement because there was no significant heritage resource to be conserved on the development site.

[71] The LPAT concluded that the development proposal was in conformity with the policies of the Growth Policy which were similar and parallel to those in the provincial policy statement. The LPAT concluded that the development proposal will conform with the relevant policies in the City Official Plan, inclusive of the King Spadina Secondary Plan.

[72] In reaching its decision, the LPAT panel was not impressed with the aesthetics of the existing buildings on the development site.

a. Of the Eliza Lennox Houses, the LPAT panel stated:

73. […] In this Panel’s view, to say that they are unprepossessing would be kind. Though they say that beauty is in the eye of the beholder, this structure is utterly bereft of any attractive features, street appeal or indicia of artisanship or historic reference.

b. The LPAT panel agreed with the opinion of Mr. McClelland that the properties wanted for artistic merit; the panel stated:

91. Mr. McClelland’s [Report] includes the language from the Regulation and he advises that none of the structures represent a “rare, unique, representative or early example of a style, type, expression, material or construction method”, nor do they “demonstrate a high degree of craftsmanship or artistic merit or scientific or technical achievement”. These are the design criteria bases. The historical, factual and pictorial evidence provided to the Tribunal in the hearing would sustain this conclusion.

[73] The LPAT was dismissive of the City’s designation of the John P. Jackson House and Eliza Lennox Houses under the Ontario Heritage Act. The LPAT stated:

95. The Tribunal would take Mr. McClelland’s conclusions even further. They undermine the underpinning for the designation by-laws as, to the extent that none of the criteria in Regulation 9/06 are legitimately met, the justification and authority for those by-laws is vulnerable.

127 Based upon the full record of evidence in this proceeding, the Tribunal finds that the structure on the Property do not reach a level of significance or importance. The Tribunal approaches the full text of the OP as importing the necessity of an assessment of heritage relics with a view to their significance and importance to the community. There was no demonstration in the Statement of Significance or the Heritage Attributes that this scrutiny was brought to these designations. In fact, there is an absence of any evidence to support such an analysis, and an explicit determination by Mr. McClelland that none of the structures met any of the designation criteria.

128. The Tribunal prefers the evidence of Mr. McClelland and determines that the existing structures on the Property do not attract an obligation of conservation as set forth in the Provincial policy instruments and the City OP.

129. From this determination, it is the Tribunal’s view that the two designation by-laws may contravene s. 24(1) of the Act. […]

[74] The LPAT found that the John P. Jackson House and Eliza Lennox Houses did not attract an obligation of conservation as set forth in the provincial policy instruments and the City’s Official Plan.” The LPAT stated:

99. As the opinion of Mr. McClelland was the only qualified opinion evidence which the Tribunal heard respecting application of the Regulation O.9/06 criteria, and as the Tribunal is persuaded as to the merit of that opinion evidence, the Tribunal finds that the heritage fabric located on 445 and 447-453 Adelaide Street West is not within the meaning of the PPS and the GP.

[75] About the relevance of the circumstance that the John P. Jackson House and Eliza Lennox Houses had been designated under the Ontario Heritage Act, and about the heritage attributes of these buildings, the LPAT stated:

130. The Tribunal is not here empowered to strike down the designation by-laws or to directly authorize the demolition of the existing structures. As the Property has now been designated, that must necessarily follow a process involving an application to the City Council for demolition, and if necessary, an appeal to this Tribunal.

131. However, the value of the existing structures in terms of their significance and importance so as to engage the applicable planning policies and attract some form of conservation is within the purview of this panel on this appeal and the Tribunal makes its findings in the discharge of its jurisdiction to determine the planning appeal before it.

[76] Based upon the evidence, and arguments of counsel, the Tribunal determined that the existing structures on the Property do not meet the standards of “significance” and “importance” set out in the provincial policy instruments and the City’s Official Plan.

[77] Although the John P. Jackson House and Eliza Lennox Houses had been placed on the City’s Heritage Register and notwithstanding that the City’s Official Plan policy 3.1.5 provides that “properties on the Heritage Register will be conserved and maintained” and that “new construction on, or adjacent to, a property on the Heritage Register shall be designed to conserve the cultural heritage values, attributes and character of the property,” the LPAT evaluated the buildings and found them of such limited cultural heritage value that retention in situ was unnecessary.

[78] The Tribunal allowed 445’s Appeal and approved the rezoning in principle. The Tribunal withheld its final Order until certain conditions are fulfilled, including: (a) the provision of photographic and measured drawing documentation of the Property to the satisfaction of the City’s Senior Manager, Heritage Preservation Services; and (b) and the owner has obtained approval to demolish the structures on the Property.

G. Jurisdiction and Standard of Appellate Review

[79] This is a statutory appeal pursuant to s. 37 of the Local Planning Appeal Tribunal Act.[^9] Section 37 provides that an appeal lies from the LPAT to the Divisional Court, with leave of the Divisional Court, on a question of law.

[80] The standard of review for questions of law on a statutory appeal is correctness.[^10] An issue of statutory interpretation is a question of law.[^11]

[81] 445-Adelaide submits that the questions upon which the City has been granted leave to appeal are not questions of law but are questions of mixed fact and law without an extricable issue of law.

[82] In CAMPP Windsor Essex Residents Association v. Windsor (City),[^12] this Court described what constitutes a question of law that is appealable and what constitutes a question of mixed fact and law that is not appealable of as follows:

32. Questions of law generally involve questions about the identification and scope of the correct applicable legal test. Questions of fact generally concern determinations of what took place. Questions of mixed law and fact generally concern questions about whether the facts satisfy the applicable legal test. Applying the law, as interpreted, to the facts, as found, is quintessentially a question of mixed fact and law. Absent an extricable legal error in the interpretation or application of the law, the result of such an exercise is not fodder for an appeal brought pursuant to s. 37 of the LPATA.

In determining whether a proposed ground of appeal raises a question of law, the factual findings of the LPAT are entitled to a very high degree of deference…

[83] 445-Adelaide relies on My Rosedale Neighbourhood v. Dale Inc.[^13] to argue that the matter now before the court does not involve a question of law.

[84] In My Rosedale Neighbourhood v. Dale Inc., the Divisional Court refused to grant leave to appeal a decision of LPAT. In that case, Justice Myers stated that a determination on the cultural heritage value of a given property is not a question of law; he stated at paragraphs 33-34:

33. In planning cases such as this one, the role of the court is to ensure that the law is understood and applied appropriately by those charged with the tasks of making the planning decisions. It is well understood that planning matters involve policy decisions as much or more than legal ones. It is not the role of the court to balance competing policies, weigh subjective aesthetics, or to make the political compromises that underlie planning decisions.

34. In this case, I am not making any determination about the heritage value of the proposed development. Rather, I am considering the court’s role as overseer of the legality of the process and make the sole finding that the applicants have not raised any issues of law that arise for decision in this case for which leave to appeal to the Divisional Court may be granted.

[85] However, as I shall explain further below, in My Rosedale Neighbourhood v. Dale Inc., Justice Myers also stated that if LPAT purported to apply the wrong test under the Planning Act or failed to apply the proper test under the Planning Act, that would state a question of law.

[86] As I shall explain in the discussion and analysis below, the issue of law in the immediate case concerns the jurisdiction of the LPAT and how that jurisdiction may be exercised having regard to the interrelationship of the Planning Act and the Ontario Heritage Act. Those are questions of law.

[87] The crux of this appeal is not, as 445-Adelaide would have it, that the City disagrees with LPAT’s finding that the John P. Jackson House and Eliza Lennox Houses do not possess sufficient cultural heritage value - although the City does disagree with that finding - the crux of this appeal is that the LPAT exceeded its jurisdiction under the Planning Act by its dismissive treatment of the City’s designation of the John P. Jackson House and Eliza Lennox Houses under the Ontario Heritage Act.

H. The City’s Submissions

[88] The City submits that the LPAT’s decision is not correct on the two questions for which leave to appeal was granted.

[89] As foreshadowed in the introduction to these Reasons for Decision, it is necessary to consider the parties’ arguments only with respect to the first question, which concerns the exercise of the LPAT’s jurisdiction in a case where the LPAT was purporting to exercise its powers exclusively under the Planning Act.

[90] The City submits that the LPAT exceeded its lawful authority and powers on the Planning Act zoning appeal by reevaluating the City's designation of the John P. Jackson House and the Eliza Lennox Houses under the Ontario Heritage Act and their cultural heritage value to conclude that the heritage attributes of these properties did not need to be conserved.

[91] The City submits that the LPAT had no authority on an exclusive Planning Act appeal to test the cultural heritage value of the John P. Jackson House and the Eliza Lennox Houses or to alter, change, or rescind the City's designations under the Ontario Heritage Act.

[92] The City submits that LPAT's authority on the s. 34(11) Planning Act appeal was limited to the powers under s.34(26) of the Planning Act, namely, whether (or not) to amend the zoning by-law, but there is nothing in subsections 34(11) or (26) to permit the LPAT to exercise any authority or powers under the Ontario Heritage Act in the absence of an appeal from a decision made under the Ontario Heritage Act.

[93] In other words, the City submits that LPAT could only evaluate the heritage designation of the John P. Jackson House and the Eliza Lennox Houses if there had been an appeal under s. 34.1 Ontario Heritage Act with respect to an application by 445-Adelaide to demolish the properties. The City submits that the Ontario Heritage Act - not the Planning Act, provides the statutory scheme for the exercise of a municipality's authority to conserve, protect and preserve heritage resources, and an Ontario Heritage Act appeal was not before the LPAT.

[94] The City submits that the LPAT predetermined or presumed the outcome of a demolition request under s. 34.1 of the Ontario Heritage Act that was not before the LPAT. The City submits that by making findings about the cultural heritage value of the John P. Jackson House and the Eliza Lennox Houses, the LPAT has fettered the discretion of the municipal heritage committee, the City, and the future panel of the LPAT because the City may be estopped from raising cultural heritage value as an issue in future proceedings. The City submits that the LPAT’s decision constitutes an abuse of process because it allows 445-Adelaide to circumvent and predetermine the demolition application and appeal processes under the Ontario Heritage Act.

I. 445-Adelaide’s Submissions

[95] 445-Adelaide submitted that the LPAT had a positive obligation to consider the heritage policies of the Planning Act on 445-Adelaide’s zoning appeal. It submits that that these positive obligations arising from the Planning Act, the province’s policy statements, provincial plans, and the City’s Official Plan were entirely independent of the Ontario Heritage Act.

[96] 445-Adelaide submitted that the City’s designation of the buildings on the development site did not automatically vest the property with sufficient significance or importance so as to prohibit LPAT from approving a development proposal that did not retain the buildings and that the LPAT was jurisdictionally empowered to independently assess the cultural heritage value of John P. Jackson House and Eliza Lennox Houses exclusively under the land planning powers of the Planning Act and without resort to the Ontario Heritage Act.

[97] 445-Adelaide submitted that the designation of a property under s. 29 of the Ontario Heritage Act does not determine whether or not a rezoning appeal should be allowed or refused.

[98] To counter the City’s arguments, 445-Adelaide submits that the LPAT correctly recognized that heritage matters can arise exclusively in the context of the Planning Act and the LPAT correctly confined itself to its Planning Act jurisdiction. 445-Adelaide submits, therefore, that it is inaccurate to suggest that the LPAT “altered, changed, or rescinded” the City’s designations under the Ontario Heritage Act.

[99] 445-Adelaide submitted that the LPAT was obliged to adjudicate the rezoning appeal under the Planning Act and its jurisdiction under that statute was not ousted by the circumstance that other land planning approvals might be required in the future.

J. Discussion and Analysis

1. Overview

[100] The overarching issue in the immediate case is the integration of the LPAT’s jurisdiction under the Planning Act with its jurisdiction under the Ontario Heritage Act.

[101] In my opinion, the LPAT erred in law in how it interpreted, integrated, and applied these statutes. Although I shall explain the argument and reach the conclusion somewhat differently, I agree with the submissions of the City that as a matter of law the LPAT erred in the exercise of its jurisdiction in the immediate case.

[102] In particular, as I shall explain below, the LPAT erred in its treatment of the circumstance that the City had passed a by-law under the Ontario Heritage Act designating the John P. Jackson House and the Eliza Lennox Houses. Purporting to exercise its jurisdiction under the Planning Act, the LPAT was dismissive of the designation of the existing buildings under the Ontario Heritage Act, and LPAT went so far as to impugn the validity of the designation. The LPAT concluded that the existing properties had no cultural heritage value. The LPAT’s conclusion, which was purportedly made just under the Planning Act, directly conflicts with the purpose and the operation of the Ontario Heritage Act.

[103] The LPAT’s conclusion arose from at least four errors about the integration of the Planning Act and the Ontario Heritage Act.

[104] The LPAT’s first error was its reasoning that it could decide the cultural heritage value of the existing buildings on 445-Adelaide’s development site exclusively under the Planning Act, which decision, in turn, led the panel to adopt Mr. McClelland’s opinion that the John P. Jackson House and the Eliza Lennox Houses did not bear significant heritage attributes within the meaning of the province’s policy statement, the province’s plan, and the City’s official plan instruments.

[105] While as I shall explain below there are situations where the LPAT can determine a property’s cultural heritage value exclusively under the Planning Act, this was not one such situation, because the Ontario Heritage Act was also applicable in the circumstances of 445-Adelaide’s development site.

[106] The LPAT’s second legal error was that of impugning and, in effect, second-guessing and disregarding the City’s designation of the existing properties as having cultural heritage value. There is a subtle and significant legal error here. The subtlety is that the LPAT’s error was jurisdictional, and not necessarily substantive.

[107] It may not have been substantively incorrect for the LPAT to conclude on the evidence that the John P. Jackson House and the Eliza Lennox Houses were aesthetically unprepossessing and devoid of cultural heritage value, but that substantive conclusion was not available to the LPAT absent its having jurisdiction under the Ontario Heritage Act to repeal the by-law designation under the Ontario Heritage Act or its having jurisdiction under the Ontario Heritage Act to override any refusal by the City to consent to a demolition of the existing buildings.

[108] The LPAT’s third and fourth errors were: (a) arriving at a cultural heritage value conclusion pursuant to the Planning Act that conflicted with the purpose and the operation of the Ontario Heritage Act; and (b) denying that its Planning Act decision conflicted with the purpose and operational of the Ontario Heritage Act. The LPAT’s decision to make the rezoning of 445-Adelaide’s development conditional on obtaining Ontario Heritage Act demolition approval did not suppress that the Planning Act decision conflicted with the purpose and operation of the Ontario Heritage Act.

[109] The nature of the LPAT’s third and fourth legal errors raise, once again, the subtle point that there were means where the LPAT would have had the jurisdiction to make its Planning Act decision paramount to the decision made under the Ontario Heritage Act. The means were potentially available to the LPAT because it has jurisdiction under both the Planning Act and the Ontario Heritage Act.

[110] In the immediate case, however, the LPAT was acting exclusively under the Planning Act, and the LPAT panel disavowed making a decision under the Ontario Heritage Act. In these circumstances, absent the LPAT having jurisdiction under the Ontario Heritage Act, it could not arrive at a legal conclusion under the Planning Act that conflicted with the purpose and operation of the Ontario Heritage Act.

[111] The nature of the LPAT’s third and fourth legal errors raises an additional subtle point. The City argues that these legal errors create an issue estoppel or res judicata that would bind the City on 445-Adelaide’s application to request the City’s consent to the demolition of the existing buildings on the development site or that would bind the LPAT should the City refuse consent and should 445-Adelaide appeal the City’s refusal. The City’s submission is incorrect. The LPAT’s decision is simply wrong and beyond its jurisdiction to make. The subtle point is that potential inconsistent decisions about the cultural heritage value of the existing buildings was avoidable if the LPAT was contemporaneously infused with its statutory authority from both the Planning Act and the Ontario Heritage Act, but in the case at bar, the LPAT insisted that it was and could proceed exclusively under the Planning Act bereft of its jurisdiction under the Ontario Heritage Act.

2. Preliminary Observations

[112] Before explaining in detail why the LPAT’s decision had a least four legal errors in the integration of the Planning Act and the Ontario Heritage Act, I have three preliminary observations.

[113] The first observation is that it appears to me that the problems in the immediate case arose because of the LPAT’s rejection of the City’s request that 445-Adelaide’s zoning appeal be adjourned to allow it to seek a demolition permit.

[114] That said, why the problems arose is a matter of indifference to the matter now before the court. For present purposes, I need not decide whether the LPAT erred in the exercise of its discretion in refusing the adjournment. I need not decide whether in the exercise of its discretion, the panel erred in concluding that the City had sprung the Ontario Heritage Act designation on 445-Adelaide There is a factual counterargument that this dark cloud for 445-Adelaide’s development project had long been on the horizon. For this appeal, the adjournment refusal is a just a part of the factual background where the LPAT was presented with a situation where 445-Adelaide was proceeding exclusively under the Planning Act for a rezoning to demolish existing buildings that had been designated as having cultural heritage value under the Ontario Heritage Act.

[115] The second preliminary observation is that by opposing the City’s adjournment request, 445-Adelaide, in effect, chose the avenue of how to deal with a property subject to a designation under the Ontario Heritage Act, but as Justice Harvison-Young noted in Clublink Corporation ULC v. Oakville (Town),[^14] “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.”

[116] The third preliminary observation concerns 445-Adelaide’s submissions that the LPAT was obliged to adjudicate the rezoning appeal under the Planning Act and that its jurisdiction under the Planning Act was not ousted by the circumstance that other land planning approvals might be required.

[117] I agree with the submission that the LPAT’s Planning Act jurisdiction was not ousted and that the LPAT was obliged to decide 445-Adelaide’s zoning appeal. However, as a creature of provincial legislation, the LPAT’s jurisdiction is limited to the powers conferred on it by the provincial legislature. The LPAT has no jurisdiction beyond that under which it has been statutorily empowered and the LPAT must stay within its jurisdiction under the Planning Act, which jurisdiction was constrained by the paramountcy of the Ontario Heritage Act in the circumstances of the immediate case.

3. The Integration of the Planning Act and the Ontario Heritage Act

[118] As indicated above, leave to appeal was granted for two issues. I have confined my analysis to the first issue which is a matter of interpreting the interrelationship of the operation of the Planning Act and the Ontario Heritage Act.

[119] More precisely, the issue in the immediate case is the integration of the determination of whether a property has cultural heritage value under the Planning Act in a case where a property has been designated as being of cultural heritage value under the Ontario Heritage Act.

[120] As indicated above, from the perspective of land use planning practice and procedure, the determination of cultural heritage value might come before the LPAT in three ways, the first of which procedure does not involve the Ontario Heritage Act.

[121] The first way, which is not the way the issue emerged in the case at bar, is where there has been no designation of the property under the Ontario Heritage Act.

[122] In that situation, the matter of whether the property had cultural heritage value would be determined exclusively within the jurisdiction of the Planning Act. As the discussion above under the heading “Cultural Heritage Value and the Planning Act” reveals, the Planning Act and the associated planning instruments directs the LPAT to have regard to the cultural heritage value in making its Planning Act land use planning approvals and provides the measures of when and how to make that assessment.

[123] It should be appreciated that when there has been no Ontario Heritage Act designation of the property that is subject of the Planning Act approval, there can be no conflict between the Planning Act and the Ontario Heritage Act.

[124] A variation of this circumstance where the matter of the cultural heritage value can be determined exclusively under the Planning Act occurs where the municipality repeals the Ontario Heritage Act designation of the property. An example of this circumstance is the case of My Rosedale Neighbourhood v. Dale Inc., which I shall discuss again below. The point to emphasize is that there is no conflict in operation or in purpose in cases where the Ontario Heritage Act is not engaged or is no longer engaged. There is no problem integrating the statutes when only one of them is engaged.

[125] There is also no problem integrating the Planning Act and the Ontario Heritage Act when both statutes are contemporaneously engaged.

[126] As noted above, under the heading “Cultural Heritage Value and LPAT Practice and Procedure,” the matter of the cultural heritage value of a property may come before the LPAT where there has been a designation of the Ontario Heritage Act and the landowner, which is seeking some Planning Act approval, is also appealing: (a) the municipality’s designation of the property; or (b) the municipality’s refusal to allow demolition of the designated property under the Ontario Heritage Act.

[127] The reason that there is no conflict between the statutes in this situation is that the LPAT is empowered: (a) to accept the municipality’s designation; or (b) to repeal the designation by-law. In this regard, it should be recalled that if the LPAT approves the landowner’s demolition application, then pursuant to s. 34.3 (1) of the Ontario Heritage Act, the municipality must repeal the by-law under s. 29 of the Act designating the property as being of cultural heritage value or interest.

[128] In the immediate case, the Planning Act and the Ontario Heritage Act were contemporaneously engaged, but by declining the adjournment request and by proceeding exclusively under the Planning Act, the LPAT expressly relinquished its jurisdiction under the Ontario Heritage Act. Had it retained that jurisdiction, it would have retained the jurisdiction to decide that the existing buildings had no significant cultural heritage value by repealing the Ontario Heritage Act designation of the property.

[129] The last observation brings the analysis to the circumstances of the immediate case where notwithstanding that the John P. Jackson House and the Eliza Lennox Houses are designated as having cultural heritage value or interest by By-laws 114-20 and 115-20 respectively, passed pursuant to s. 29 of the Ontario Heritage Act, the LPAT was dismissive of that designation and impugned the legality of the designation and went ahead and approved the rezoning of the property concluding that for Planning Act land planning purposes those buildings could be demolished. With respect that decision was an error in law for at least the four reasons described above.

[130] In its argument, the City submitted that the s. 29 designation under the Ontario Heritage Act “deemed” the properties as having cultural heritage value under the Planning Act. It may be a matter of semantics, but there was no deeming about it.

[131] Section 29 (1) of the Ontario Heritage Act empowered the City to designate the John P. Jackson House and the Eliza Lennox Houses to be of cultural heritage value or interest. Section 1.1 of the Planning Act stipulates that one of the purposes of the Planning Act is to recognize the decision-making authority of municipal councils in planning. Section 2.1 of the Planning Act directs when the LPAT makes a decision that relates to a planning matter, it shall have regard to any decision that is made under the Planning Act by a municipal council that relates to the same planning matter.

[132] In my opinion, the LPAT’s decision conflicted with the purposes and the operation of the Ontario Heritage Act and the LPAT could not impugn the legality of the designation for Planning Act purposes without repealing the City’s designation by-law, which was not a possibility because the LPAT was purporting to exercise only its jurisdiction under the Planning Act.

[133] I, therefore, conclude that the City’s appeal should be allowed.

4. My Rosedale Neighbourhood v. Dale Inc.

[134] Before concluding these Reasons for Decision, it is necessary to discuss My Rosedale Neighbourhood v. Dale Inc., a leave to appeal decision of this Court that featured prominently in the arguments of the parties in the immediate appeal. It is necessary to explain why My Rosedale Neighbourhood v. Dale Inc. is of no assistance or no obstacle to the parties in the immediate case.

[135] The facts of My Rosedale Neighbourhood v. Dale Inc. were that Dale Inc. proposed a development in which it planned to demolish three houses that had been designated by the City of Toronto under the Ontario Heritage Act. The City did not enact the rezoning for the project but by the time the zoning appeal reached the LPAT, the City had consented to the demolition of the three houses and had negotiated a settlement of the planning for the zoning amendment. The LPAT granted the rezoning. A ratepayers group then sought leave to appeal LPAT’s decision to the Divisional Court. One of the proposed grounds for appeal was that the ratepayers’ group submitted that the LPAT had abdicated its statutory function under the Planning Act by deferring the City’s approval of the Ontario Heritage Act and thus treated the heritage policies under the Planning Act as subservient to the Ontario Heritage Act.

[136] Justice Myers stated at paragraph 10 of his decision: “If the tribunal purported to apply the wrong test under the Planning Act or failed to apply the test under the Planning Act at all, that would state a question of law in my view.” However, Justice Myers then went on to analyze the reasons for decision of the LPAT. and he concluded that the LPAT applied the appropriate test under the Planning Act. At paragraph 27 of his decision, Justice Myers stated:

27 It is apparent that the first two issues of law raised by the applicants then do not arise on the facts of this case. The tribunal certainly considered City Council's approval of the demolition among the facts that it considered. But it plainly went on to set out the correct tests and to explicitly make the required legal findings. There is no point hearing an appeal on the issue of whether the tribunal was entitled to abdicate its role to that of the City or to subordinate the Planning Act tests to the Ontario Heritage Act when on the face of the decision it did neither of those things.

[137] I have no quarrel with Justice Myers’ decision. I agree with him that if the LPAT applies the wrong test under the Planning Act in its treatment of cultural heritage value, that would be an appealable issue of law. I have no quarrel with his analysis for a case in which the operation of the Ontario Heritage Act had been removed as a factor in the calculus of cultural heritage. There was no problem integrating the two statutes in My Rosedale Neighbourhood v. Dale Inc.

[138] I repeat that if the municipality consents to the demolition of a designated property, the heritage by-law is repealed, removing any possibility of conflict between the Planning Act and the Ontario Heritage Act. Thus, My Rosedale Neighbourhood v. Dale Inc. is not a case like the case at bar where the LPAT had to integrate the operation of the two statutes and therefore My Rosedale Neighbourhood v. Dale Inc. does not assist or imped the arguments of the parties in the immediate case.

K. Conclusion

For the above reasons, the City’s appeal is allowed, the decision below is quashed, with costs in the agreed amount of $20,000, all inclusive. I leave it to the parties and to the LPAT to determine how matters should now proceed below, based on this court’s decision. Any further LPAT proceedings concerning these properties shall be heard by a different member of the Tribunal.

“Perell J.”

I agree: “D.L. Corbett J.”

I agree: “Sheard J.”

Released: March 16, 2022

Schedule “A” – Relevant Statutory Provisions

(a) Ontario Heritage Act, R.S.O. 1990, c. O.18

Definitions

1 In this Act,

“heritage attributes” means, in relation to real property, and to the buildings and structures on the real property, the attributes of the property, buildings and structures that contribute to their cultural heritage value or interest;

Register

27 (1) The clerk of a municipality shall keep a register of property situated in the municipality that is of cultural heritage value or interest.

Contents of register

(2) The register kept by the clerk shall list all property situated in the municipality that has been designated by the municipality or by the Minister under this Part and shall contain, with respect to each property,

(a) a legal description of the property;

(b) the name and address of the owner; and

(c) a statement explaining the cultural heritage value or interest of the property and a description of the heritage attributes of the property. 2019, c. 9, Sched. 11, s. 6.

Same

(3) In addition to the property listed in the register under subsection (2), the register may include property that has not been designated under this Part but that the council of the municipality believes to be of cultural heritage value or interest and shall contain, with respect to such property, a description of the property that is sufficient to readily ascertain the property

Notice to property owner

(5) If a property that has not been designated under this Part has been included in the register under subsection (3), the council of the municipality shall, within 30 days after including the property in the register, provide the owner of the property with notice that the property has been included in the register.

Objection

(7) The owner of a property who objects to a property being included in the register under subsection (3) shall serve on the clerk of the municipality a notice of objection setting out the reasons for the objection and all relevant facts. 2019, c. 9, Sched. 11, s. 6.

Decision of council

(8) If a notice of objection has been served under subsection (7), the council of the municipality shall,

(a) consider the notice and make a decision as to whether the property should continue to be included in the register or whether it should be removed; and

(b) provide notice of the council’s decision to the owner of the property, in such form as the council considers proper, within 90 days after the decision.

Restriction on demolition, etc.

(9) If a property that has not been designated under this Part has been included in the register under subsection (3), the owner of the property shall not demolish or remove a building or structure on the property or permit the demolition or removal of the building or structure unless the owner gives the council of the municipality at least 60 days notice in writing of the owner’s intention to demolish or remove the building or structure or to permit the demolition or removal of the building or structure.

Designation by municipal by-law

29 (1) The council of a municipality may, by by-law, designate a property within the municipality to be of cultural heritage value or interest if,

(a) where criteria for determining whether property is of cultural heritage value or interest have been prescribed, the property meets the prescribed criteria; and

(b) the designation is made in accordance with the process set out in this section.

Notice of intention

(3) Notice of intention to designate under subsection (1) shall be,

(a) served on the owner of the property and on the Trust; and

(b) published in a newspaper having general circulation in the municipality.

Contents of notice

(4) Notice of intention to designate property that is served on the owner of property and on the Trust under clause (3) (a) shall contain,

(a) an adequate description of the property so that it may be readily ascertained;

(b) a statement explaining the cultural heritage value or interest of the property and a description of the heritage attributes of the property; and

(c) a statement that notice of objection to the notice of intention to designate the property may be served on the clerk within 30 days after the date of publication of the notice of intention in a newspaper of general circulation in the municipality under clause (3) (b).

Objection

29(5) A person who objects to a proposed designation shall, within thirty days after the date of publication of the notice of intention, serve on the clerk of the municipality a notice of objection setting out the reason for the objection and all relevant facts.

Referral to Review Board

29(7) Where a notice of objection has been served under subsection (5), the council shall, upon expiration of the thirty-day period under subsection (4), refer the matter to the Review Board for a hearing and report.

If no notice of objection or no withdrawal

(8) If no notice of objection is served within the 30-day period under subsection (5) or a notice of objection is served within that period but the council decides not to withdraw the notice of intention to designate the property, the council may pass a by-law designating the property, provided the following requirements are satisfied:

1. The by-law must be passed within 120 days after the date of publication of the notice of intention under clause (3) (b) or, if a prescribed circumstance exists, within such other period of time as may be prescribed for the circumstance.

Appeal to Tribunal

(11) Any person who objects to the by-law may appeal to the Tribunal by giving the Tribunal and the clerk of the municipality, within 30 days after the date of publication under paragraph 4 of subsection (8), a notice of appeal setting out the objection to the by-law and the reasons in support of the objection, accompanied by the fee charged by the Tribunal.

Powers of Tribunal

(15) After holding the hearing, the Tribunal shall,

(a) dismiss the appeal; or

(b) allow the appeal in whole or in part and,

(i) repeal the by-law,

(ii) amend the by-law in such manner as the Tribunal may determine,

(iii) direct the council of the municipality to repeal the by-law, or

(iv) direct the council of the municipality to amend the by-law in accordance with the Tribunal’s order.

Permits void

30 (1) If a notice of intention to designate a property as property of cultural heritage value or interest is given under section 29, any permit that allowed for the alteration or demolition of the property and that was issued by the municipality under any Act, including a building permit, before the day the notice was served on the owner of the property and on the Trust and published in a newspaper is void as of the day the notice of intention is given in accordance with subsection 29 (3). 2005, c. 6, s. 18.

Interim control of alteration, demolition or removal

(2) Sections 33 and 34 apply with necessary modifications to property as of the day notice of intention to designate the property is given under subsection 29 (3) as though the designation process were complete and the property had been designated under section 29.

Alteration of property

33. (1) 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 in the by-law that was required to be registered under clause 29 (12) (b) or subsection 29 (19), 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.

Demolition or removal

34 (1) No owner of property designated under section 29 shall do either of the following, 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:

1. Demolish or remove, or permit the demolition or removal of, any of the property’s heritage attributes, as set out in the description of the property’s heritage attributes in the by-law that was required to be registered under clause 29 (12) (b) or subsection 29 (19), as the case may be.

2. Demolish or remove a building or structure on the property or permit the demolition or removal of a building or structure on the property, whether or not the demolition or removal would affect the property’s heritage attributes, as set out in the description of the property’s heritage attributes in the by-law that was required to be registered under clause 29 (12) (b) or subsection 29 (19), as the case may be.

Decision of council

(4.2) The council, after consultation with its municipal heritage committee, if one is established, and within the time period determined under subsection (4.3),

(a) shall,

(i) consent to the application,

(ii) consent to the application, subject to such terms and conditions as may be specified by the council, or

(iii) refuse the application;

(b) shall serve notice of its decision on the owner of the property and on the Trust; and

(c) shall publish its decision in a newspaper having general circulation in the municipality.

Deemed consent

(4.4) If the council fails to notify the owner under clause (4.2) (b) within the time period determined under subsection (4.3), the council shall be deemed to have consented to the application.

Appeal to Tribunal

34.1 (1) If the council of a municipality consents to an application subject to terms and conditions under subclause 34 (4.2) (a) (ii) or refuses an application under subclause 34 (4.2) (a) (iii), the owner of the property that was the subject of the application may appeal the council’s decision to the Tribunal within 30 days of the day the owner received notice of the council’s decision.

Powers of Tribunal

(5) After holding a hearing, the Tribunal may order,

(a) that the appeal be dismissed; or

(b) that the municipality consent to the demolition or removal referred to in paragraph 1 or 2 of subsection 34 (1), as the case may be, without terms and conditions or with such terms and conditions as the Tribunal may specify in the order.

Council consents to application under s. 34 — required steps or actions

34.3 (1) The council of a municipality shall take such steps or actions as may be prescribed if the owner of a property designated under section 29 has applied in writing to the council for consent to a demolition or removal referred to in paragraph 1 or 2 of subsection 34 (1) in respect of the property and,

(a) the council consents to the application under subclause 34 (4.2) (a) (i) or (ii) or is deemed to have consented to the application under subsection 34 (4.4); or

(b) the Tribunal has ordered that the municipality give its consent under clause 34.1

Designation of study area

40.1 (1) If the council of a municipality undertakes a study under section 40, the council may by by-law designate the area specified in the by-law as a heritage conservation study area for a period of up to one year.

Appeal to Tribunal

(4) Any person who objects to a by-law passed under subsection (1) may appeal to the Tribunal by giving the clerk of the municipality, within 30 days after the date of publication under clause (3) (b), a notice of appeal setting out the objection to the by-law and the reasons in support of the objection, accompanied by the fee charged by the Tribunal.

Designation of heritage conservation district

41 (1) Where there is in effect in a municipality an official plan that contains provisions relating to the establishment of heritage conservation districts, the council of the municipality may by by-law designate the municipality or any defined area or areas thereof as a heritage conservation district.

Property designated under Part IV

(2) A property that is designated under Part IV may subsequently be included in an area designated as a heritage conservation district under this Part, and a property that is included in an area designated as a heritage conservation district under this Part may subsequently be designated under Part IV.

Which Part applies

(2.1) A property that is designated by the Minister under subsection 34.5 (1) and is included in an area designated as a heritage conservation district under this Part is subject to subsections 34.5 (2) to (12), and not to this Part, with respect to any alterations of the property or any demolition or removal referred to in clause 34.5 (2) (b) or (c) in respect of the property. 2005, c. 6. s. 30 (1); 2019, c. 9, Sched. 11, s. 18 (1).

Same

(2.2) A property that is designated by a municipality under section 29 and is included in an area designated as a heritage conservation district under this Part is subject to section 30 and sections 33 to 34.4, and not to this Part, with respect to any alterations of the property or any demolition or removal referred to in subsection 34 (1) in respect of the property if,

(a) the designation of the heritage conservation district was made before the day section 41.1 came into force; and

(b) no heritage conservation district plan has been adopted by the council of the municipality under section 41.1 with respect to the heritage conservation district.

Appeal to Tribunal

(4) Any person who objects to the by-law may appeal to the Tribunal by giving the Tribunal and the clerk of the municipality, within 30 days after the date of publication under clause (3) (b), a notice of appeal setting out the objection to the by-law and the reasons in support of the objection, accompanied by the fee charged by the Tribunal.

Powers of Tribunal

(7) After holding the hearing, the Tribunal shall,

(a) dismiss the appeal; or

(b) allow the appeal in whole or in part and,

(i) repeal the by-law,

(ii) amend the by-law in such manner as the Tribunal may determine,

(iii) direct the council of the municipality to repeal the by-law, or

(iv) direct the council of the municipality to amend the by-law in accordance with the Tribunal’s order

Designation under public or private Acts

68 (1) […]

Conflict

(3) Where there is a conflict between this Act or the regulations and any other Act or regulation, this Act or the regulations shall prevail.

(b) O. Reg. 9/06 (Criteria for Determining Cultural Heritage Value or Interest)

Criteria

1. (1) The criteria set out in subsection (2) are prescribed for the purposes of clause 29 (1) (a) of the Act.

(2) A property may be designated under section 29 of the Act if it meets one or more of the following criteria for determining whether it is of cultural heritage value or interest:

1. The property has design value or physical value because it,

i. is a rare, unique, representative or early example of a style, type, expression, material or construction method,

ii. displays a high degree of craftsmanship or artistic merit, or

iii. demonstrates a high degree of technical or scientific achievement.

2. The property has historical value or associative value because it,

i. has direct associations with a theme, event, belief, person, activity, organization or institution that is significant to a community,

ii. yields, or has the potential to yield, information that contributes to an understanding of a community or culture, or

iii. demonstrates or reflects the work or ideas of an architect, artist, builder, designer or theorist who is significant to a community.

3. The property has contextual value because it,

i. is important in defining, maintaining or supporting the character of an area,

ii. is physically, functionally, visually or historically linked to its surroundings, or

iii. is a landmark.

(c) Planning Act, R.S.O. 1990, c. P.13

Purposes

1.1 The purposes of this Act are,

(a) to promote sustainable economic development in a healthy natural environment within the policy and by the means provided under this Act;

(b) to provide for a land use planning system led by provincial policy;

(c) to integrate matters of provincial interest in provincial and municipal planning decisions;

(d) to provide for planning processes that are fair by making them open, accessible, timely and efficient;

(e) to encourage co-operation and co-ordination among various interests;

(f) to recognize the decision-making authority and accountability of municipal councils in planning.

Provincial interest

2 The Minister, the council of a municipality, a local board, a planning board and the Tribunal, in carrying out their responsibilities under this Act, shall have regard to, among other matters, matters of provincial interest such as,

(d) the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest;

Approval authorities and Tribunal to have regard to certain matters

2.1 (1) When an approval authority or the Tribunal makes a decision under this Act that relates to a planning matter, it shall have regard to,

(a) any decision that is made under this Act by a municipal council or by an approval authority and relates to the same planning matter; and

(b) any information and material that the municipal council or approval authority considered in making the decision described in clause (a).

Same, Tribunal

(2) When the Tribunal makes a decision under this Act that relates to a planning matter that is appealed because of the failure of a municipal council or approval authority to make a decision, the Tribunal shall have regard to any information and material that the municipal council or approval authority received in relation to the matter.

Same

(3) For greater certainty, references to information and material in subsections (1) and (2) include, without limitation, written and oral submissions from the public relating to the planning matter.

Policy statements

3 (1) The Minister, or the Minister together with any other minister of the Crown, may from time to time issue policy statements that have been approved by the Lieutenant Governor in Council on matters relating to municipal planning that in the opinion of the Minister are of provincial interest.

Policy statements and provincial plans

(5) A decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission or agency of the government, including the Tribunal, in respect of the exercise of any authority that affects a planning matter,

(a) shall be consistent with the policy statements issued under subsection (1) that are in effect on the date of the decision; and

(b) shall conform with the provincial plans that are in effect on that date, or shall not conflict with them, as the case may be.

Zoning by-laws

34 […]

Appeal to Tribunal

(11) Subject to subsection (11.0.0.0.1), where an application to the council for an amendment to a by-law passed under this section or a predecessor of this section is refused or the council fails to make a decision on it within 90 days after the receipt by the clerk of the application, any of the following may appeal to the Tribunal by filing with the clerk of the municipality a notice of appeal, accompanied by the fee charged by the Tribunal:

1. The applicant.

2. The Minister.

Powers of Tribunal

(26) The Tribunal may,

(a) on an appeal under subsection (11) or (19), dismiss the appeal;

(b) on an appeal under subsection (11) or (19), amend the by-law in such manner as the Tribunal may determine or direct the council of the municipality to amend the by-law in accordance with the Tribunal’s order; or

(c) on an appeal under subsection (19), repeal the by-law in whole or in part or direct the council of the municipality to repeal the by-law in whole or in part in accordance with the Tribunal’s order.

Schedule “B” – Relevant Planning Instruments

(a) Provincial Policy Statement, 2014

2.6.1 Significant built heritage resources and significant cultural heritage landscapes shall be conserved.

2.6.3 Planning authorities shall not permit development and site alteration on adjacent lands to protected heritage property except where the proposed development and site alteration has been evaluated and it has been demonstrated that the heritage attributes of the protected heritage property will be conserved.

Definitions:

Built heritage resource: means a building, structure, monument, installation or any manufactured remnant that contributes to a property’s cultural heritage value or interest as identified by a community, including an Aboriginal community. Built heritage resources are generally located on property that has been designated under Parts IV or V of the Ontario Heritage Act, or included on local, provincial and/or federal registers.

Conserved: means the identification, protection, management and use of built heritage resources, cultural heritage landscapes and archaeological resources in a manner that ensures their cultural heritage value or interest is retained under the Ontario Heritage Act. This may be achieved by the implementation of recommendations set out in a conservation plan, archaeological assessment, and/or heritage impact assessment. Mitigative measures and/or alternative development approaches can be included in these plans and assessments.

Significant: means in regard to cultural heritage and archaeology, resources that have been determined to have cultural heritage value or interest for the important contribution they make to our understanding of the history of a place, an event, or a people.

Criteria for determining significance for the resources identified in sections (c)(e) are recommended by the Province, but municipal approaches that achieve or exceed the same objective may also be used.

(b) Growth Plan for the Greater Golden Horseshoe

4.2.7 Cultural heritage resources

Cultural heritage resources will be conserved in order to foster a sense of place and benefit communities, particularly in strategic growth areas.

Municipalities will work with stakeholders, as well as First Nations and Métis communities, in developing and implementing official plan policies and strategies for the identification, wise use and management of cultural heritage resources.

Definitions:

Built heritage resource

A building, structure, monument, installation or any manufactured remnant that contributes to a property’s cultural heritage value or interest as identified by a community, including an Aboriginal community. Built heritage resources are generally located on property that has been designated under Parts IV or V of the Ontario Heritage Act, or included on local, provincial and/or federal registers. (PPS, 2014)

Cultural heritage resources

Built heritage resources, cultural heritage landscapes and archaeological resources that have been determined to have cultural heritage value or interest for the important contribution they make to our understanding of the history of a place, an event, or a people. While some cultural heritage resources may already be identified and inventoried by official sources, the significance of others can only be determined after evaluation. (Greenbelt Plan)

Conserved

The identification, protection, management and use of built heritage resources, cultural heritage landscapes and archaeological resources in a manner that ensures their cultural heritage value or interest is retained under the Ontario Heritage Act. This may be achieved by the implementation of recommendations set out in a conservation plan, archaeological assessment, and/or heritage impact assessment. Mitigative measures and/or alternative development approaches can be included in these plans and assessments. (PPS, 2014)

Strategic growth areas

Within settlement areas, nodes, corridors, and other areas that have been identified by municipalities or the Province to be the focus for accommodating intensification and higher-density mixed uses in a more compact built form. Strategic growth areas include urban growth centres, major transit station areas, and other major opportunities that may include infill, redevelopment, brownfield sites, the expansion or conversion of existing buildings, or greyfields. Lands along major roads, arterials, or other areas with existing or planned frequent transit service or higher order transit corridors may also be identified as strategic growth areas.

(c) City of Toronto Official Plan

3.1.5 HERITAGE CONSERVATION

Toronto’s cultural heritage can be seen in the significant buildings, properties, districts, landscapes and archaeological sites found throughout the city. Their protection, wise use and management demonstrate the City’s goal to integrate the significant achievements of our people, their history, our landmarks, and our neighbourhoods into a shared sense of place and belonging for its inhabitants.

The City’s significant heritage properties tell stories about the forces and events that have shaped Toronto. They reveal the City’s historical geography; a lakefront terrain carved by rivers and valleys that 11,000 years ago first allowed our First Nations to hunt and fish, and later farm. The Plan policies call for an engagement protocol with First Nations and the Métis for heritage properties and archaeological sites that may be of interest to them, as well as ensuring that information is provided to First Nations and Métis where archaeological resources are found to be First Nations or Métis in origin.

Our cultural heritage includes both the tangible and intangible values and attributes of the distinct towns, villages and cities that have come together to create the Toronto we know today. They enable us to reflect upon the diversity of our communities and neighbourhoods, and our distinct role as a provincial capital. The scale, number and significance of our cultural heritage resources is described in an on-going process of identification, evaluation and preservation that includes a Heritage Register and a comprehensive mapping of the City’s archaeologically sensitive areas and sites. The identification of heritage properties that tell our City’s stories is an on-going process

Our heritage properties represent a collective past and their protection, use and adaptive reuse also enrich our daily experience of the City; from commuting through Union Station and dining at the Distillery District, to hiking the Humber River and Rouge Valleys, which were important trade routes and the sites of large and vibrant First Nations settlements. We celebrate communally in squares in front of the Scarborough and North York Civic Centres and City Hall. Consciously or unconsciously, our heritage resources are part of our daily experience of our City.

Cultural Heritage is an important component of sustainable development and place making. The preservation of our cultural heritage is essential to the character of this urban and liveable city that can contribute to other social cultural, economic and environmental goals of the City. As a result, heritage conservation is integrated within the policies in many other sections of this Official Plan. The heritage policies of this Plan not only promote the preservation of important heritage buildings and structures but also the public views of them for the enjoyment of Torontonians. Schedule 4 describes the significance of each of the views of important heritage properties shown on Maps 7A and 7B.

The conservation of natural heritage is also an important element of heritage conservation in Toronto. The Official Plan provides for the conservation of Toronto’s urban forest, ravines and river valleys in policies protecting the Natural Heritage System contained in Section 3.4 and Map 9 of the Plan. The conservation of important heritage resources includes those policies protecting Toronto’s Natural Heritage Areas.

As Toronto continues to grow and intensify this growth must recognize and be balanced with the ongoing conservation of our significant heritage properties, views, natural heritage system, and landscapes. In this context, the regulatory tools available to the City will be used to conserve the significant cultural heritage values and attributes of our heritage properties. Conservation of cultural heritage resources not only enriches our lives, it is an important shared responsibility and a prominent civic legacy that we must leave for future generations.

Policies

1. The Heritage Register will be maintained by the City Clerk, or his or her designate and will include all properties and Heritage Conservation Districts of cultural heritage value or interest that are designated under Parts IV and V of the Ontario Heritage Act, and will include all non-designated properties that have been identified through consultation with the City’s heritage committee and approved by Council for their inclusion. The Heritage Register will be publicly accessible.

2. Properties and Heritage Conservation Districts of potential cultural heritage value or interest will be identified and evaluated to determine their cultural heritage value or interest consistent with provincial regulations, where applicable, and will include the consideration of cultural heritage values including design or physical value, historical or associative value and contextual value. The evaluation of cultural heritage value of a Heritage Conservation District may also consider social or community value and natural or scientific value. The contributions of Toronto’s diverse cultures will be considered in determining the cultural heritage value of properties on the Heritage Register.

3. Heritage properties of cultural heritage value or interest properties, including Heritage Conservation Districts and archaeological sites that are publicly known will be protected by being designated under the Ontario Heritage Act and/or included on the Heritage Register.

4. Properties on the Heritage Register will be conserved and maintained consistent with the Standards and Guidelines for the Conservation of Historic Places in Canada, as revised from time to time and as adopted by Council.

5. Proposed alterations, development, and/or public works on or adjacent to, a property on the Heritage Register will ensure that the integrity of the heritage property’s cultural heritage value and attributes will be retained, prior to work commencing on the property and to the satisfaction of the City. Where a Heritage Impact Assessment is required in Schedule 3 of the Official Plan, it will describe and assess the potential impacts and mitigation strategies for the proposed alteration, development or public work.

6. The adaptive re-use of properties on the Heritage Register is encouraged for new uses permitted in the applicable Official Plan land use designation, consistent with the Standards and Guidelines for the Conservation of Historic Places in Canada.

7. Prior to undertaking an approved alteration to a property on the Heritage Register, the property will be recorded and documented by the owner, to the satisfaction of the City.

8. When a City-owned property on the Heritage Register is no longer required for its current use, the City will demonstrate excellence in the conservation, maintenance and compatible adaptive reuse of the property.

9. When a City-owned property on the Heritage Register is sold, leased or transferred to another owner, it will be designated under the Ontario Heritage Act. A Heritage Easement Agreement will be secured and monitored, and public access maintained to its heritage attributes, where feasible. This policy may not apply to City-owned properties in Heritage Conservation Districts that are not considered to be individually significant.

10. A heritage management plan will be adopted by Council. The heritage management plan will be a comprehensive and evolving strategy for the identification, conservation and management of all properties on the Heritage Register, unidentified and potential heritage properties.

11. A protocol will be developed to co-ordinate and direct actions of the City and its agents in the event that a property on the Heritage Register is threatened by an emergency such as a fire, flood, willful damage or other unanticipated events. This protocol will address the conservation of the heritage property once the primary life and safety objectives of evacuating and ensuring public safety have been completed.

12. Designated heritage properties will be protected against deterioration by neglect through the enforcement of heritage property standards by-laws.

13.In collaboration with First Nations, Métis and the Provincial Government, the City will develop a protocol for matters related to identifying, evaluating and protecting properties and cultural heritage landscapes on the Heritage Register, archaeological sites and artifacts where they may be of interest to First Nations or Métis.

14.Potential and existing properties of cultural heritage value or interest, including cultural heritage landscapes and Heritage Conservation Districts, will be identified and included in area planning studies and plans with recommendations for further study, evaluation and conservation

(d) King-Spadina Secondary Plan

Section 2.5 – Heritage buildings and other important buildings within the KingSpadina Area will be retained, restored and re-used.

Section 4.1 – Heritage buildings in the King-Spadina Area are essential elements of the physical character. In this regard, the City will seek the retention, conservation, rehabilitation, re-use and restoration of heritage buildings by means of one or more appropriate legal agreements.

CITATION: Toronto, City of v. 445 Adelaide Street West Inc. 2022 ONSC 1471

COURT FILE NO.: Div. Ct. 327/20

DATE: 2022/03/+

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.J. Corbett, Perell, and Sheard, JJ.

BETWEEN:

CITY OF TORONTO

Appellant

• and -

445 ADELAIDE STREET WEST INC., N. ALFRED APPS, JOSEPH AND SALWA MUSA, and TORONTO STANDARD CONDOMINIUM CORPORATION No. 198

Respondents

REASONS FOR DECISION

Released: March 16, 2022

[^1]: A Google-Earth street view photo: 445-Adelaide’s development site is to the left of the red line on the image.

[^2]: R.S.O. 1990. c. O.18.

[^3]: R.S.O. 1990, c. P. 13.

[^4]: Toronto (City) v. 445 Adelaide Street West Inc., 2021 ONSC 3920 (Div. Ct.).

[^5]: Clublink Corporation ULC v. Oakville (Town), 2019 ONCA 826 at para. 46; Toronto College Street Centre Ltd. v. Toronto (City) (1986), 1986 2472 (ON CA), 56 O.R. (2d) 522 at p. 531 (C.A.), leave to appeal to S.C.C. refused [1987] S.C.C.A. No. 135; St. Peter's Evangelical Lutheran Church (Ottawa) v. Ottawa (City), 1982 60 (SCC), [1982] 2 S.C.R. 616 at pp. 623-24.

[^6]: 2019 ONCA 826.

[^7]: S.O. 1974, c. 122.

[^8]: S.O. 2005, c. 6.

[^9]: 2017, S.O. 2017, c. 23.

[^10]: CAMPP Windsor Essex Residents Association v. Windsor (City), 2020 ONSC 4612 (Div. Ct.); Canada v. Vavilov, 2019 SCC 65; Housen v. Nikolaisen, 2002 SCC 33.

[^11]: Clublink Corporation ULC v. Oakville (Town), 2019 ONCA 826 at para. 35; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, at para. 33.

[^12]: 2020 ONSC 4612 (Div. Ct.).

[^13]: 2019 ONSC 6631 (Div. Ct.)

[^14]: 2019 ONCA 826 at para. 83.