Note: The original version of this article appeared in The Law Society Gazette in 1995, the 20th anniversary of the Ontario Heritage Act. The author revised and condensed the article in 2005 for publication in ACORN, the journal of Architectural Conservancy Ontario, to mark the 30th anniversary of the Act. He has further revised the article for publication here, to mark the 50th anniversary of the Act. The anniversary date of the coming into force of the Act is today, March 5, 2025.
I. Introduction
This year, 2025, marks the fiftieth anniversary of the passage of Ontario's first comprehensive heritage protection legislation, the Ontario Heritage Act. In the period before the Act’s passage — beginning in the early 1960s — the City of Kingston, Ontario twice sought to secure for itself the power to prevent the demolition of its historic buildings, a power that American and British municipalities already enjoyed. The legislation that eventually resulted from the City of Kingston's efforts was copied in other Ontario municipalities, ultimately serving as the model for the province-wide heritage legislation that currently exists.
II. British and American precedents
It is no surprise that Kingston would prove to be the birthplace of modern heritage preservation legislation in Ontario. A city with a rich loyalist history, it is perhaps best known as the home of Sir John A. Macdonald, and as the capital of the Province of Canada from 1841-44. Kingstonians have traditionally shown a keen awareness of, and interest in, their civic heritage — an interest evidenced by the formation of the Kingston Historical Society as early as 1893. The members of the Society recognized that the history of Kingston (and in some instances of the nation) was visibly manifested in the city's building stock: in the year of its founding the Society noted that there had been regrettable losses in the building stock through demolition, and began a photographic catalogue of historic Kingston buildings.
The developments in Kingston were not, however, isolated. In 1882, the British parliament had passed legislation allowing the British government to accept guardianship or title to ancient monuments. The power to prevent the alteration or demolition of historic buildings at the hands of an uncooperative owner, however, would not come until amendments to the legislation were made in 1913. By this time many other European countries had historic preservation legislation in place as well.
In the North American context, in 1931, the City of Charleston, South Carolina passed a zoning ordinance requiring that visible exterior alterations to buildings erected prior to 1860 be in keeping with the general character of early Charleston architecture. New Orleans followed suit in 1937 with a similar ordinance affecting the Vieux Carré. In a 1953 challenge that the Vieux Carré ordinance constituted an unconstitutional taking of private property without compensation, the Louisiana Supreme Court ruled that, although it was doubtful that the law could be upheld if its only considerations were aesthetic, the retention of the Vieux Carré was of benefit to the citizens of New Orleans generally because of its commercial value, and the law was therefore a proper use of the zoning power. By 1957 eleven American cities had established an historic district ordinance. As well, two districts had been created by the State of Massachusetts, the Nantucket-Siasconset and Beacon Hill districts.
The validity of the Massachusetts statues was affirmed in two advisory opinions of the Massachusetts Supreme Judicial Court, released simultaneously in 1955. The court was of the opinion that the statutes did not run afoul of the due process clause of the U.S. Constitution’s fourteenth amendment as an illegal taking without compensation. It ruled that the statutes rested upon “the general power to legislate for the public safety, health, morals and welfare,” and were a valid means of protecting economically valuable historic sites and structures. The impact of these decisions was apparently significant: the ten years following their release saw an almost five-fold increase in the number of historic district ordinances in place in the United States.
III. Post-war developments in Ontario
The accelerated loss of historic buildings around this same period created enough concern among Kingston residents that by 1958 Kingston’s city council had established a Preservation of Historical Buildings Committee. The mandate of the committee was to advise council on matters of historic preservation.
No doubt influenced by the judicial approval of historic district zoning in Massachusetts three years earlier, the committee recommended using the zoning power of the Planning Act to control the demolition of historic buildings. Consequently, on September 24, 1962, the Kingston city council gave first reading to “A by-law to regulate and control the alteration or demolition of buildings of historic or architectural value.” The by-law drew heavily on the American precedents. Pursuant to ss.30(9) of the Planning Act, however, it could not become law until it received approval by the Ontario Municipal Board. The City sought the approval under paragraph 4 of ss.30(1) of that Act, a provision of the general zoning power which allowed for the regulation of the external design and character of buildings and structures. The City’s efforts were brought to a halt when it was informed by the Board that, in its opinion, no such authority existed under that or any other part of s.30.
Although Kingston did not follow up with a formal request to the provincial government for enabling legislation for its heritage protection by-law, the issue of heritage preservation in that city did not disappear. Indeed, with the excitement surrounding Canada's impending Centennial celebrations in 1967, municipalities across Ontario became more aware of their own local history, and of its visible manifestation in the built environment. One can think of several ambitious architectural restorations undertaken as Centennial projects, including restorations such as Dundurn Castle in Hamilton, St. Lawrence Hall in Toronto, and Bellevue House and City Hall in Kingston.
Thus, it was in Centennial year that the Ontario Heritage Foundation was established (it was renamed the Ontario Heritage Trust in 2005). The Foundation was empowered by provincial statute to acquire or enter into agreements regarding property of historical and architectural interest “for the use, enjoyment and benefit of the people of Ontario.” Any agreement it might enter into, however, had to be with a willing owner, as the Foundation had no power to expropriate or prevent — or even delay — the alteration or demolition of heritage buildings.
The City of Toronto established a similar authority at the municipal level in the same year, backing it up with private provincial legislation five months later. An Act Respecting the City of Toronto allowed the City to designate as historic such buildings and the land on which they stand “as may be deemed by the Council of the Corporation to be worthy of preservation for either architectural or historical reasons.” After designation, the City could defer the issuance of any building or demolition permit for a period of up to sixty days from the time of application.
Amidst this heightened Centennial-year interest in things historical, the Kingston city council passed a by-law authorizing the commissioning of an independent firm of town planners to prepare an urban renewal scheme for its Sydenham Ward. Kingston was determined that revitalization of its downtown residential core should not come at the loss of its nineteenth-century housing stock. Indeed, one of the major determinants of the boundaries for the urban renewal area was the concentration of historical buildings as identified by the Kingston Historical Society. The report of the planners, which was delivered in June of 1970, reflected the City's preservation concerns, containing a recommendation that the City press for private legislation enabling it to pass heritage by-laws for both single buildings and whole districts.
In anticipation of the need for such legislation, and as a response to the demolition of one historic building and the application for a demolition permit for another, at its November 10, 1969 meeting, the city council adopted a report from its planning board asking the provincial government to enact legislation permitting municipalities to undertake measures to protect buildings of architectural and historic merit.
In particular, the City sought the power to: designate buildings for protection and preservation; make grants towards the cost of renovations where the owner undertook to maintain or restore the original character; purchase and lease buildings; and designate “historical and architectural conservation areas for which provisions may be made by by-law to conserve the character of the area.” It asked that the province be allowed to do the same in unorganized areas or for buildings of “particular provincial importance or where the problems exceed the resources of a particular municipality.”
Two weeks later, the council was informed that Syl Apps, M.P.P. for Kingston and the Islands, had received their resolution and promising to support it in any way he could. Apps attempted to secure the necessary powers for municipalities through a private member's bill, which he introduced in the legislature on March 4, 1970.
Apps’s bill proposed to amend the general zoning power of the Planning Act so that municipalities would be enabled to designate buildings as being of historical or architectural value or interest. Once a building was designated, a municipality could prohibit or regulate its alteration, acquire or lease it, and make grants to its owner, all with the aim of preserving its architectural and historical value. With the same aim in mind, municipalities would also be allowed to designate historic conservation areas, regulating the use made of the buildings contained within them.
Less than three weeks after Apps had introduced his bill, the member from Peterborough introduced another private member's bill, which also attempted to secure effective protection for historic buildings. His approach was significantly different from that of the Kingston model. First, the proposed preservation power was to be found not in the Planning Act, but in an amendment to the Archaeological and Historic Sites Protection Act. Under the scheme, protection would attach automatically to all “historic buildings” in the province, which the bill defined as buildings that had been in existence in whole or in substantial part for more than 100 years. Anyone wishing to demolish or “structurally alter” such a building would have to apply to the minister responsible for the Act for a permit. After consultation with the historical society in the area where the building stood, or with the municipal council (where no such society existed), the minister could either deny the permit, or grant it conditionally or unconditionally.
On April 13, Apps moved for second reading of his bill. Although members of all parties expressed the need for such legislation, the sitting adjourned before the bill could be recommended for a third reading.
Although both bills died on the order paper before making it past second reading, Darcy McKeough, the Minister of Municipal Affairs, said that he would recommend to his colleagues that they allow a bill to come forward on behalf of the City of Kingston, in advance of general legislation. On June 26, 1970, The City of Kingston Act, 1970 received royal assent. As Kingston’s director of planning was later to reflect: “The Act as it emerged from the government's legal staff seemed to protect private property rights rather than community and social values.” It denied the City two powers that the council had specifically requested: the City was not allowed to make loans to owners of designated buildings, only grants; as well, the Act made no mention of conservation areas, only single-building designation. In addition, no designation could take place without the prior approval of the Ontario Municipal Board.
Despite these shortcomings, after the legislation was passed, the City established a Committee of Architectural Review to make an inventory of heritage buildings which should be subject to demolition control. None of the buildings listed by the committee was ever formally designated under The City of Kingston Act, 1970 however: the Act clearly contemplated, and effectively dictated, an approach to heritage designation that was completely reactive. Although the Act allowed the municipality to designate “buildings or structures...of historic or architectural value or interest,” where the designating by-law prohibited the demolition or alteration of a building, the City was put in the economically impossible position of having to purchase or expropriate, or otherwise offer compensation in respect of the designation within ninety days, regardless of whether the particular building was even threatened. If an agreement with the owner was not reached within the ninety-day period, the by-law had to be repealed.
Quite obviously, the only realistic option left to the city council was to postpone designation until such time as they knew a building to be in danger of demolition or alteration. In most cases that knowledge would not come until a demolition or building permit had been requested. In addition to these obstacles, even in cases where the City might still decide to designate a particular building and enter into negotiations with the building's owner to prevent demolition or alteration, the Act provided a further disincentive to designation: if no agreement was reached within the ninety-day period, the City would be “liable to the owner of any affected land for any consequential damages.”
Not surprisingly, the City never took the risk of designating a building before it was endangered. In 1973, when faced with an application for a permit to demolish an architecturally significant, 140-year-old building in the last complete limestone block in the downtown area, time constraints dictated that even though the City was willing to gamble and face any liability that failed negotiations might attract, it was too late to invoke the Act.
IV. Ontario Heritage Act
When The City of Kingston Act was passed, Minister McKeough said that the government had been considering province-wide heritage legislation for three or four years, but had just recently undertaken a study of both the need within the province and the best course of action to take. After making rough estimates of the number of historically and architecturally significant buildings in the province, and examining preservation approaches in France, Britain, and the United States, the resulting report, released by the Department of Municipal Affairs in 1971, suggested model legislation for Ontario.
It proposed a two-tier system of listing: the lieutenant-governor-in-council would list buildings of provincial significance, and municipalities would have a residual power enabling them to list buildings of local significance. The demolition or alteration of provincially listed buildings would require the approval of the minister, whose decision would be final.
Municipalities, on the other hand, would only be empowered to prevent the demolition of buildings that they had designated for 180 days, during which time they could reach an agreement with a building's owner to save it, having been given the ability to expropriate, lease, buy, or offer grants or loans. Refusal to allow alterations, however, would not necessitate compensation by the municipality. The criteria for designation were again taken from the American precedents, almost word for word.
Ministerial decisions would be final, although municipal designation would be subject to an appeal to the minister within 28 days. The minister would also have the prerogative to review even uncontested designations within the same time period. The report recommended that cities should be able to designate buildings that surrounded significant buildings, even though they were not themselves of particular interest.
In addition to single-building designation, municipalities would be allowed to create historic districts within which no new building could be erected and no old building demolished or altered “insofar as its external architectural appearance is concerned” without prior authorization of the municipal council. As with single-building designation, demolition could only be delayed for a maximum of 180 days. Historic district designation was to act as an additional zoning control on top of the existing, underlying zoning for an area. Consequently, the report reflected an expectation that an amendment to the Planning Act would be necessary to allow municipalities to designate historic districts.
Over three years would pass before the government would act on the report. In the meantime, both London and Ottawa requested and received private legislation for heritage preservation, in 1972 and 1973 respectively. The acts were identical to The City of Kingston Act, except insofar as London and Ottawa were empowered to give grants to property owners for the upkeep and repair of their designated buildings.
Unfortunately, the similarity with Kingston’s legislation went even further: no doubt because of the fear of liability and the necessity to reach an agreement with property owners within ninety days of designation, not a single building was ever designated under either statute before the government got around to introducing its own province-wide legislation. A private member's bill backed by the City of Toronto in 1973 to obtain more effective powers under Toronto’s 1967 private heritage legislation was defeated at the Private Bills Committee.
Finally, on December 12, 1974, Bill 176, the long-awaited province-wide legislation, was introduced by James Auld, the Minister of Colleges and Universities of the Progressive Conservative government. By this time, Manitoba, Quebec, Alberta and British Columbia had already passed similar legislation, starting in 1967. The centrepiece of Ontario’s bill was its stipulation that no owner of a designated building could alter it or permit its alteration where such action would be likely to affect the reason for designation, unless he or she applied to council in writing and received council's consent. When faced with such a request, a municipality had to consult its advisory committee, and was given ninety days within which to make a decision on whether to allow the alteration. As with decisions on designation, affected property owners could appeal council’s decision to a provincial review board called the Conservation Review Board for a non-binding recommendation.
When demolition was requested, councils could only prohibit work for a period of 180 days following the initial ninety-day period within which it had to allow or deny the request (giving a maximum stay of demolition of 270 days). Although councils could not prohibit demolition outright, they were empowered to expropriate threatened buildings, or otherwise enter into agreements with their owners to save them. The powers relating to designation, alteration, and demolition, which expanded on the precedents of the earlier private municipal legislation, were contained in Part IV of the new Act,
The bill provided that councils could pass by-laws allowing for grants or loans to owners of designated property. As the 1962 Kingston by-law had attempted to do, the bill also allowed councils to designate historic conservation districts (contained in Part VI of the new Act, and not in the Planning Act as contemplated in the government’s 1971 report). In contrast to by-laws designating single buildings, no by-law purporting to designate an entire district could come into force without the approval of the Ontario Municipal Board. The Ontario Heritage Act also consolidated within it two exiting pieces of legislation: the Ontario Heritage Foundation Act (which became Part II of the new Act), and the Archaeological and Historic Sites Protection Act (which became Part VI). Significantly, the Act also set out penalties for its violation.
The bill received second reading on December 16, 1974. The Liberal member from Kitchener welcomed the bill, stating that it was long overdue. But he felt that those involved in historic work might well feel it did not go far enough, a shortcoming he hoped would be corrected in the future. The NDP member for Ottawa Centre echoed this sentiment, pointing out that the provincial power of designation that had been proposed in the 1971 report from the Department of Municipal Affairs was nowhere to be found. He felt that this omission was a serious weakness for two reasons: some municipalities, interested in the increased tax revenues that new development could bring might refuse ever to designate historic structures; other municipalities, desperate to save structures of outstanding provincial interest, might welcome the ability of the minister to step in and absolutely refuse demolition, after the municipality had stayed demolition as long as the statute allowed. Envisaging the same situation, the Liberal member from St. George noted that in a city like Toronto, where real estate values were so high, it would be unrealistic to think that expropriation could ever be a useful tool with which municipalities could prevent demolition of a designated structure. Tacitly acknowledging these shortcomings, the minister replied that he did think that there would be amendments to the bill, perhaps in the year to come, after it was enacted.
The bill was referred to the committee of the whole on January 31, 1975. Heritage Canada (now the National Trust for Canada), whose views on the legislation were read from a brief, felt that the primary power of designation should lie with the province, and municipalities could have a residual power of designation. It felt that few municipalities would have staff with “training, experience and taste” equal to the job of designation. And further, because of the bifurcation of power under Canada's constitution, under which the provinces were largely left with the task of guarding the national heritage through designation, it queried whether the province was justified in shifting this onus to municipalities.
Heritage Canada also raised the compelling point that allowing property owners to demolish after a period of 180 days, but forbidding them from altering their designated buildings indefinitely, might in fact drive frustrated owners to demolish in cases where they otherwise might not. It also feared that 180 days might not be enough time to initiate expropriation proceedings should they become necessary.
In this regard, the member from York Centre suggested that the bill be amended to get rid of the 180-day limit on stays of demolition and to allow indefinite prohibition on demolition. The legislation as proposed, he felt, was a paper tiger: “What this government and this ministry are prepared to do is to preserve the cultural heritage of Ontario for less than a year. That's the essential principle of this bill.” A motion to amend the bill accordingly went to a vote and was lost.
The Ontario Heritage Act was given third reading and passed on February 3, 1975, receiving royal assent three days later. Lieutenant Governor Pauline McGibbon proclaimed the new Act into force on March 5, 1975. This proclamation order, unlike the others she had made since her appointment the previous year, was not signed in her offices at Queen’s Park. Instead, the official proclamation took place at a special ceremony that was held, fittingly, in Kingston — where it had all begun.
Kington City Hall, where the new Act was proclaimed. Photo courtesy City of Kingston
Mark Osbaldeston is a lawyer and author. Among his published works are three books on architectural and planning history: Unbuilt Toronto, Unbuilt Toronto 2, and Unbuilt Hamilton. He lives in Toronto.