Heritage Conservation Districts and Bill 23 - Part Two

Wednesday, November 8, 2023
by Dan Schneider

In the identification of [a district’s cultural heritage] values and attributes that contribute to the district’s overall character, it is important to understand that the value of the district as a whole is always greater than the sum of its parts.1

We’re looking at the implications of Bill 23 for Ontario’s 140+ Heritage Conservation Districts (HCDs).

There are two changes: (a) new requirements for the application of criteria for cultural heritage value to district designations; and (b) new rules for amending and repealing heritage conservation district plans. Last time we delved into (b), where the rules have yet to be set2; this time we’ll examine (a), where the rules are already in place.

Figuring out exactly what these new rules for the application of criteria for cultural heritage value to districts are  and why they were necessary in the first place – isn’t easy, to put it mildly. There has been bewilderment and confusion, with more to come.

Many of the problems can be laid at the feet of the Ministry of Citizenship and Multiculturalism, which is responsible for these rules and their elucidation.

View of downtown New Hamburg Conservation District

In the downtown New Hamburg Heritage Conservation District.

It starts with the Act, with Bill 23’s new precondition for district designation by a municipality:

The council of the municipality may ... designate the municipality or any defined area or areas of it as a heritage conservation district if, … 

(b) where criteria for determining whether a municipality or an area of a municipality is of cultural heritage value or interest have been prescribed, the municipality or any defined area or areas of the municipality meets the prescribed criteria.3

Since the word “prescribed” in a statute always means “provided for in regulations” under the statute, this takes us to the regulations under the Ontario Heritage Act (OHA). The criteria that “have been prescribed” are the criteria that were added to Ontario Regulation 9/06 for the purpose of the new precondition.4

You’ll recall that the so-called 9/06 criteria go back to 2006 and consist of three types – design/physical, historical/associative and contextual – with nine criteria in total. They were originally designed for individual property designation under Part IV where the test for municipal designation was whether a property met one or more of the criteria (now changed to two or more as part of the same amendments we’re discussing).5 Over time the 9/06 criteria have become the de facto definition of cultural heritage property in Ontario and are used in other contexts, such as the 2010 Standards and Guidelines for Conservation of Provincial Heritage Properties under Part III.1 of the OHA.

What, then, are the new criteria that have been prescribed for the purpose of district designation?

Before we look at that, let’s take a step back … to ask why there should be such criteria in the first place. What is the need for them, what issues were they intended to address?

With individual designation, you need a bar  a test for what property makes the grade and what doesn’t. Weak or unworthy designations  based on scant research and with skeletal rationales and fuzziness about attributes  might have been okay before the advent of permanent demolition control, but not after. And designations also needed to consider the full range of potential cultural heritage values, not just the more obvious design values typified by the grand old house.

Of course the criteria prepared for this purpose in 2005 (after a months-long consultation with stakeholders) and codified in O. Reg. 9/06 didn’t come out of thin air. They reflected professional best practice, itself the result of long experience and use, in evaluating cultural heritage property.

Back to districts. What is the problem that called for regulatory intervention by the province?

Fact: There have been no real issues in Ontario with municipalities designating weak, flimsy or trumped-up HCDs. No misuse of HCD designation  in 140+ instances going back over 40 years! Or am I missing something here?

Certainly there have been bumps and hiccups with the implementation of some HCDs. But any systemic weakness in HCDs in the province was already addressed in 2005 with new statutory requirements  again, in line with professional best practice  that districts have a plan, the plan be developed through a study and following a public process, and the plan include key components including stated objectives of designating the district, explanation of the cultural heritage value of the district, and policies and guidelines for managing changes in the district.6

Geez Louise  all that and you still want criteria!

Given the statutory framework, a new requirement that HCDs meet significance criteria makes no sense. No public policy sense at least. It is a solution in search of a problem.

But, thanks to Bill 23, we are stuck with it. So what are these criteria? This is where things get even more interesting…

Note that the new language in subsection 41(1), quoted above, mirrors the requirement for individual designation in subsection 29(1), which has been there since 2005:

The council of a municipality may ... designate a property within the municipality to be of cultural heritage value or interest if,

  1. where criteria for determining whether property is of cultural heritage value or interest have been prescribed, the property meets the prescribed criteria

Instead of “property” we have “a municipality” or “an area of a municipality.”

This mirroring would lead one to think that the new criteria would be criteria for “an area” that is, the would-be HCD as a whole. Meaning the area/district would have to meet the criteria at least one or two of them or whatever was the standard to qualify for district designation.

And this is, apparently, what was intended. The Ministry of Citizenship and Multiculturalism (MCM) certainly thought so.7

But if that was the policy intention somehow it did not get translated into regulation.

Here is what we did get. A new section 3 on criteria for districts was added to O. Reg. 9/06.

View of the Imperial Hotel in New Hamburg's Heritage Conservation District

The Imperial Hotel, now the Imperial Market & Eatery, in New Hamburg’s Heritage Conservation District.

Criteria, s. 41 (1) (b) of the Act

3. (1) The criteria set out in subsection (2) are prescribed for the purposes of clause 41 (1) (b) of the Act.

(2) Subject to subsection (3), in the case of a by-law passed under subsection 41 (1) of the Act on or after January 1, 2023, a municipality or any defined area or areas of it may be designated by such a by-law as a heritage conservation district under subsection 41 (1) of the Act if the municipality or the defined area or areas of it meets the following criteria:

1.  At least 25 per cent of the properties within the municipality or defined area or areas satisfy two or more of the following:

i.  The properties have design value or physical value because they are rare, unique, representative or early examples of a style, type, expression, material or construction method.

ii.  The properties have design value or physical value because they display a high degree of craftsmanship or artistic merit.

iii.  The properties have design value or physical value because they demonstrate a high degree of technical or scientific achievement.

iv.  The properties have historical value or associative value because they have a direct association with a theme, event, belief, person, activity, organization or institution that is significant to a community.

v.  The properties have historical value or associative value because they yield, or have the potential to yield, information that contributes to an understanding of a community or culture.

vi.  The properties have historical value or associative value because they demonstrate or reflect the work or ideas of an architect, artist, builder, designer or theorist who is significant to a community.

vii.  The properties have contextual value because they define, maintain or support the character of the district.

viii.  The properties have contextual value because they are physically, functionally, visually or historically linked to each other.

ix.  The properties have contextual value because they are defined by, planned around or are themselves a landmark.

What jumps out at you here? You see the familiar list of nine criteria with “property“ changed to “properties” and a few minor wording changes.

And of course the big new requirement that 25% of the properties in the district now have to satisfy two or more of the criteria, the same standard as for individual designation. We’ll come back to that.

But about criteria for the district as a whole? At a close look it’s almost like they should be there but they’re not. Note the strange isolated “1” at the top of the list of criteria. Where is the “2”? And the “following criteria” that must be met are in fact not the gang of nine but only one, singular criterion of a different kind: “At least 25 per cent of the properties within the municipality or defined area or areas satisfy two or more of the following: …”.

It’s quite strange. Sloppy drafting for sure. But likely more than that: something was left out or perhaps taken out last minute. And the theory is it had to do with criteria for districts as a whole.

Oh well, since significance criteria for districts make no sense, as we’ve seen, this is no loss. But if we had to have them, wouldn’t criteria for districts viewed as an entity a cultural heritage landscape! be more intelligible and consistent than what we ended up with?

Instead of the whole… the parts. A criterion aimed at the particular properties in a district.

And the 25% number!? Said one leading heritage observer:

This 25% threshold must have been dreamt up by an accountant who only understands numbers. In a heritage context, it is ridiculous. The meaning of the 25% stipulation may well end up in the courts.

Why 25%, and not 50%, or 33.3%, or (you pick)? Why are we never given sound, or any, policy reasons for what appear to be kooky, arbitrary edicts?8

Policy flakiness aside, there is a practical question about implementation. How do municipalities deal with the 25% rule (i.e. count 25%)? While the 25% rule is not a high bar and it would be hard to imagine an HCD not meeting it, municipalities (and their staff, heritage committees and consultants) still have to figure out how to do the counting.

The same heritage observer spelled out the problem:

The 25% requirement is problematic because there is no helpful definition of "property" in the OHA.9 What is a "property" in an HCD? For the 25% threshold, what is 25% of the "properties"? Is it based on 25% of overall square footage of the HCD or on 25% of the individual properties with P.I.N.s (Property Identification Numbers in the Land Titles Registry system)? For example, a key piece of land in the Wortley Village/Old South HCD in London is the Normal School property which takes up an entire block and undoubtedly meets at least 2 criteria, but would it only count as one property? Is it equal to a typical Queen Anne style heritage home located on a 25' x 60' chunk of land? What about the Stratford City Hall or the Perth County Court House compared with the narrow building on Ontario Street where Thomas Edison apparently lived in Stratford? What about Victoria Park in the Downtown London HCD?

A related issue is just how much detailed evaluation of the parts/properties (however counted) has to happen to show that two or more criteria are met in 25% of cases. Do you have to go through this taxing exercise for every single property? Can you stop once you’ve reached 25% meeting two or more or maybe aim for 30% just to be on the safe side. Seriously.

Questions for MCM: how do you interpret the 25 per cent requirement and how can it be realistically implemented without further burdening municipalities?10

Needless, silly, sloppy. Arbitrary, equivocal, confusing. And talk about government red tape.

That about sums up the new HCD criteria regulations. Let’s hope for a very different  outcome with the HCD amend/repeal regulations to come.


Note 1: Heritage Conservation Districts: A Guide to District Designation under the Ontario Heritage Act”, part of the Ontario Heritage Tool Kit, page 10.

Note 2: See Heritage Conservation Districts and Bill 23 - Part One

Note 3: Subsection 41(1) of the OHA.

Note 4: O. Reg. 9/06 was amended by O. Reg. 569/22 effective January 1, 2023.

Note 5: See The test for designation Regulations 9/06 and 10/06

Note 6: Subsection 41.1(5) of the OHA requires a HCD plan include:

  1. a statement of the objectives to be achieved in designating the area as a heritage conservation district;
  2. a statement explaining the cultural heritage value or interest of the heritage conservation district;
  3. a description of the heritage attributes of the heritage conservation district and of properties in the district;
  4. policy statements, guidelines and procedures for achieving the stated objectives and managing change in the heritage conservation district; and
  5. a description of the alterations or classes of alterations that are minor in nature and that the owner of property in the heritage conservation district may carry out or permit to be carried out on any part of the property, other than the interior of any structure or building on the property, without obtaining a permit under section 42.

Note 7: At the Ontario Heritage Conference in London this past June, a MCM staffer showed the following slide in a ministry presentation on the changes made by Bill 23 (emphasis added):

Increasing the standard for HCD to be designated to require it meet two or more prescribed criteria.

HCD must meet two or more of the criteria O.Reg. 9/06

Minimum threshold of 25% of properties meeting two or more.

In September, in response to requests from the City of Toronto, MCM provided the city with a “clarification” that the slide was incorrect and apologized for the confusion. In October MCM circulated a “revised” slide deck that did not include the error.

This raises the question as to why MCM would make this mistake if it had not intended there be two new criteria requirements one for the HCD, one for its properties. MCM was, after all, the author of the regulations. (Or was it?)

Here’s another clue this was the intent. New subsection 41.1 (5.1) says: “Where criteria have been prescribed for the purposes of clause 41 (1) (b), the statement referred to in clause (5) (b) of this section must explain how the heritage conservation district meets the prescribed criteria.” (emphasis added) Look above to Note 6 and you’ll see that the statement referred to in clause (b) is the statement “explaining the cultural heritage value or interest of the heritage conservation district.” No mention of the “properties”, although they are mentioned, separately from the district”, in clause (c).

Note 8: In the absence of stated policy rationales, one is left to speculate. One theory is that the new 25% requirement (whatever its exact meaning) was put in place as a kind of prophylactic to prevent municipalities, in response to the two-year expiry on listings, misusing Part V designations to protect clusters of listed properties from losing all protection. Another even sadder theory is that the policy intent, if it can be called that, was simply to make HCDs an extraordinary Ontario success story harder to use. This is certainly a result.

Note 9: Part V does have a definition of “property”, meaning “real property and includes all buildings and structures thereon”, but it is not helpful with the problem here.

Note 10: In mid-October, as this article was being completed, MCM did send out limited FAQs on HCDs. The FAQs were apparently provided to the informal heritage planners network (but not to heritage organizations like CAHP and Architectural Conservancy Ontario). A search of the ministry’s website did not turn them up.