Most of Ontario’s pre-2005 HCDs are invalid and unenforceable. Wait…

Just when we thought the status of Heritage Conservation Districts — and their pre-2005 and post-2005 HCD plans — was settled1, along comes an Ontario Municipal Board decision that seems to throw a wrench in the works.

Yes, it’s the OMB, in 2017 actually, when the metamorphosis to Local Planning Appeal Tribunal was still underway. It’s an obscure decision no one much had ever heard of. Too bad it didn’t stay that way.

But, almost three years later, the law firm that won the case has been touting the decision and its role in it. In a June 2020 article on its website, “A Question Of Heritage — Heritage Conservation Districts Post-2005,”2 the prominent Toronto law firm Gowling WLG makes a remarkable claim:

Ultimately, the Board found that the [sic] since the City had not followed the required process for the old HCDP, it had no legal status, and there was no requirement for a Heritage Permit. There is no requirement for a Heritage Permit under the existing OHA, unless it arises under a HCDP adopted in accordance with the post-2005 OHA. [emphasis added; HCDP = HCD plan]

OMG

Yikes. No requirement for a heritage permit means… you got it, no protection! None. Zero protection for thousands of properties in some 60 Heritage Conservation Districts in Ontario that were designated before the 2005 changes to the Ontario Heritage Act and that do not have an HCD plan under the current legislation.3

Surely the OMB decision doesn’t say this.4

In fact — it (probably) doesn’t. Although it’s sometimes hard to tell. It takes some sorting through some muddled thinking, but in my view Gowlings are misinterpreting the outcome here.

Whew. The decision is not a rogue one after all, not an outlier boldly throttling half our HCDs. At the same time it certainly doesn’t “represent the evolution of thinking on the subject,” as Gowlings would have it.5 There is really nothing new here.

It is, well, just muddled.


The first clue that the decision is not as represented: This was an appeal under the Planning Act, not the Ontario Heritage Act.

The case concerned a proposed severance and minor variances for a property in tony Rockcliffe Park in Ottawa. The property owner, a Mr. Statler, wanted to sever his lot in order to build a new residence on the severed parcel. The City felt the owner’s applications were premature; it wanted to see what the new house would look like first and insisted that a heritage permit should be sought for the new structure before the applications were considered.

Now Rockcliffe Park had been designated an HCD in 1997 and had a contemporary study/plan with guidelines. The City of Ottawa had just gone through the process of updating the HCD plan to meet the current OHA requirements, but the plan was under appeal and not yet in force.6 Presumably both the old plan/guidelines and the new plan include guidance or strictures applicable to new development in the district.

The City’s Committee of Adjustment required the owner submit a specific design for the new building as a condition of approval of the severance and minor variance applications. The owner appealed.

In its decision the OMB focussed first on the planning issues. This was pretty straightforward. The Board applied the “four tests” for minor variances and the criteria for severance consent7 and concluded they were satisfied. What was proposed was also consistent with the Provincial Policy Statement. As for the COA’s condition, the Board observed that “[f]urther detail regarding a proposed future building is not relevant to the zoning permissions sought.” So far, so good.

The Board then turns to the question of the application of the Rockcliffe Park HCD plans (old and new) and the heritage approvals process under the OHA to the situation here. This is when things start to go sideways.

Remember, this is an appeal under the Planning Act. No heritage approvals have been requested by the owner, nor refused, at this point. Did the Board really have to wade into heritage issues?

And if it did, might it not have been enough to simply look at section 42 of the Ontario Heritage Act — which requires a heritage permit for alterations, demolition, etc. in the district — and note that it did not constrain severances and thus imposed no obstacle to the granting of the planning applications?

But instead… My take is that the Board had heard arguments and counter-arguments from the City and the appellant about the impact of the old/new HCD plans on Mr. Statler’s objectives — to sever and to build a new house on the severed parcel — and it felt it had to deal with them, relevant or not. Problems ensued.


This second part of the decision on the heritage questions lacks the coherence and rigour of the first and seems like an extended add-on.

The Board wrestles with the legal status of HCD plans, before and after 2005, and concludes that pre-2005 plans are advisory and of no binding effect, unlike post-2005 plans. The decision cites OMB case law to support that finding.8 The old Rockcliffe Park plan is advisory. The 2016 plan is not yet in force, so is not binding either. Fine.

As an aside, the main purpose of HCD plans and their guidelines and standards for changes in the district is, of course, to inform and guide the front-line decision-maker — municipal councils and staff — in assessing and deciding applications for permits under section 42 of the OHA.9 The requirement for a heritage permit stems from the Act itself, not the plan.

At this point, rather than focus on section 42, the Board gets confused over the Act’s current requirement that the designation of an HCD must be coupled with an HCD plan.

First we get:

Section 41.1 of the OHA seems to suggest that the statute requires by-laws adopting HCDPs for all HCDs, whether those are designated before or after 2005.

This comes out of nowhere and appears to be the Board simply musing out loud about the possible meaning of section 41.1.10 The section “seems to suggest” that all HCDs, pre-and post-2005, must have new plans? Mnn. Sure doesn’t sound like a bold and definite interpretation from the dais!

And the Act does not require that “new” plans must be put in place for all older HCDs.11

Then there’s this:

The evidence is clear that the old HCDP did not have any legal status and that

there is no requirement for a Heritage Permit under the existing OHA, unless it arises

under a HCDP passed in accordance with the OHA as it is presently constituted.

There was evidence in the form of OMB precedents that the old plan did not have legal status; but the rest of it is head-scratching. No evidence of any kind was cited for the second part about there being no requirement for a heritage permit here “unless it arises under a HCDP passed in accordance with the OHA…”

As we’ve just noted, the requirement for heritage permits doesn’t “arise” from HCD plans, but comes straight from section 42. Which in any case doesn’t constrain severances.

What is clear is the Board doesn’t understand heritage controls in a district. When it finally looks at section 42, it misinterpret its scope. It compares the pre-2005 wording to the changes in 2005 and correctly notes that the scope of controls was expanded from alterations to “buildings” and “structures” to alterations to “any part of the property.” The purpose of the change was to allow municipalities to control alterations not just to buildings/structures but also to landscaping and other elements, which are important to the character of many heritage conservation districts — like Rockcliffe Park with its park-like setting.

The Board seems to think that this change means a land severance now requires a heritage permit (where it wouldn’t before), at least if there is an updated plan in place:

… [B]ecause the applications are dealing only with land, as opposed to a structure, the Appellant is not precluded from applying for a consent to sever without first obtaining a Heritage Permit.

But the OHA never intended to control land severances (nor is there any case law for that interpretation). There was no requirement for a heritage permit here, not because there was no updated plan in place, but because the Act doesn’t mandate it.


Confusion

So, yes, a bit of a muddle. A case that appears to have been correctly decided, with a decision that is solid on the main points but that goes off the rails on some side-issues.

Not a case worth bothering about really.

Except that the case is being held up as saying that all pre-2005 HCDs in the province are somehow invalid!

Gowlings is defending this astounding position. Says Michael Polowin, lead author of the article and one of the lawyers who argued the case, “…I am convinced that it is the law.”12

As to the article, I have it on good authority that the article was circulated in an email to people involved in various Toronto neighbourhoods, with the subject line “untangling how and which HCDs apply” and the message, “This helpful summary came to my condo corporation today from Gowlings. You might find it useful, or at least educational.”

The risk is the Gowlings article may influence property owners and the public and be used to undermine heritage protections.

One Toronto heritage architect called what is going on here “ambulance-chasing.”

The Ministry of Heritage, Sport, Tourism and Culture Industries is looking into the matter but doesn’t seem too fussed. “Since the heritage conservation district guide is being revised [as part of an updating of the guidance material in the Ontario Heritage Toolkit], there will be an opportunity to consider what can be said in respect of the information presented in the Gowlings opinion.”13

To my mind, it’s yet another example that the OMB/LPAT often does not understand cultural heritage and the Ontario Heritage Act. Danger ahead.

Caution


Note 1: See the OHA+M articles Heritage Conservation Districts, pre- and post-2005, part one and Heritage Conservation Districts, pre- and post-2005, part two. As these articles make clear, it was never the intention of the (then) Ministry of Culture or the Legislature to strip pre-2005 districts of their protection. Just as existing individual designations under Part IV of the OHA were “automatically” given stronger protections in 2005, so were existing district designations under Part V.

Note 2: Read the article here. 

Note 3: According to MHSTCI there were 74 HCDs in the province in 2005 and only about 13 have since updated their HCD plans.

Note 4: The decision is from November 23, 2017. See case number PL170360.

Note 5: From August 4, 2020 email correspondence from Michael Polowin to me. Mr. Polowin was one of the counsel for the appellant in the case and the lead author of the Gowlings article.

Note 6: The new Rockcliffe Park HCD plan came into force in 2018.

Note 7: The four tests for a minor variance and the criteria for severance consents are found in sections 45 and 51 of the Planning Act respectively.

Note 8: The case law/OMB precedents, both before and since this decision, are examined in the OHA+M articles referenced in Note 1.

Note 9: Subsection 42 (1) says:

No owner of property situated in a heritage conservation district that has been designated by a municipality under this Part shall do any of the following, unless the owner obtains a permit from the municipality to do so:

1. Alter, or permit the alteration of, any part of the property, other than the interior of any structure or building on the property.

2. Erect, demolish or remove any building or structure on the property or permit the erection, demolition or removal of such a building or structure.

Note 10: Subsections 41.1 (1) and (2) say:

(1) A by-law under section 41 designating one or more heritage conservation districts in a municipality shall adopt a heritage conservation district plan for each district that is designated in the by-law.

(2) If, on or before the day the Ontario Heritage Amendment Act, 2005 received Royal Assent, the council of a municipality had passed a by-law designating one or more heritage conservation districts, it may pass a by-law adopting a heritage conservation district plan for any one of the designated districts.

Note 11: One of the clear indications that the Legislature did not intend to take away the protection of pre-2005 districts is that there are no transition provisions addressing the matter. Nothing for example giving municipalities a specific timeframe to update their HCD plans before their districts “expire.”

Note 12: From August 4 email correspondence referenced in Note 5 above.

Note 13: From August 10, 2020 email correspondence from William Gerrard, Senior Policy Advisor in the Cultural Policy Unit at MHSTCI.

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About Dan Schneider

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Dan Schneider is a heritage enthusiast, policy wonk, writer and professional heritage consultant. Formerly senior policy advisor with the provincial culture ministry, Dan has much experience with the Ontario Heritage Act and heritage policy issues. A lawyer by training, he was lead policy expert on major changes to the Ontario Heritage Act in 2005 and 2006. His advice is frequently sought on questions related to Ontario's legislative and policy framework for heritage. Based in St. Marys, Ontario, Dan is Principal of Dan Schneider Heritage Consulting. He can be reached at danschneider@live.ca.