Dominion Foundry Complex Vik Pahwa Photo
How do you stop a demolition?
That of course is the perennial question for built heritage advocates.
Last week The Friends of the Foundry, an ad hoc group trying to save four old industrial buildings in the Corktown neighbourhood of Toronto, found one way. They persuaded a Divisional Court judge to issue an injunction against the owner to stop demolition work that had already started on the site.1
Well, strictly speaking it wasn’t an injunction. Why not? Because the property owner here is the Province of Ontario — the Minister of Government and Consumer Services to be precise — and injunctions can’t be issued against the Crown. So the court’s order takes the form of “an order of prohibition to prevent destruction or alteration of any heritage features of the heritage buildings.”
What’s going on here?
The property at issue is a large parcel on Eastern Avenue in downtown Toronto. Originally owned by the Canadian Northern Railway, the complex of four large brick structures was built between 1912 and the 1950s and used by Dominion Wheel and Foundries Ltd. to produce railway equipment, rolling stock and machinery supplies. In listing the property the city described the complex as “historically and architecturally significant as a good example of an industrial enclave in the area adjoining the lower Don River.”
The site, now provincially owned, is the subject of a Minster’s Zoning Order (MZO) issued in late 2020 by Steve Clark, Minister of Municipal Affairs and Housing. The MZO permits a high-rise housing development with up to three buildings.
In a surprise move work crews with bulldozers showed up at the site on January 18 and began to tear down the buildings. There was an immediate outcry, beginning with the neighbours who witnessed this incursion and city officials2, which spread to the rest of the city, and then ricocheted across the province.
This draconian interference by the Minister of Municipal Affairs and Housing through a MZO, which (amongst other concerns) overrides the normal planning process without regard for input by the municipal government or local citizens, combined with the Province blatantly ignoring its own rules for the protection of significant heritage properties, is deeply disturbing.
~ Paul King, former chair of Community Heritage Ontario and member of the St. Marys Municipal Heritage Committee
To stop the demolition already underway the St. Lawrence Neighbourhood Association, on behalf of the Friends group, and supported by the City of Toronto, went to court. A Divisional Court panel, consisting of Justice David Corbett, heard the matter on January 27. A six-page decision came down two days later.
Said the court: “The issue on this application is not whether the buildings should be demolished, whether they should be preserved, or what use should be made of these lands. The issue is whether the processes that must be followed in reaching and then implementing decisions on these issues were followed, and if they were not, what should be done about that now.”
The court granted the application: Its order provides a temporary or interim stay on further demolition work pending a final determination of the matter by a separate three-judge Divisional Court panel, which will hear the case later this month.
At the hearing of the application Justice Corbett was clearly not amused by what appeared to be high-handed actions by the province. The decision is more restrained:
On the record before me, a respondent [the Minister of Government and Consumer Services] or someone acting on a respondent’s behalf has made serious mistakes here. It appears clear that the demolition began in contravention of the Heritage Act, and in breach of Ontario’s obligations under a subdivision agreement between Ontario and the City of Toronto.
With respect to the OHA the court found:
“a. The buildings are protected as heritage buildings pursuant to the Ontario Heritage Act.
b. In respect to the buildings at issue in this proceeding, the Heritage Act binds the Crown by its terms. That is, the Legislature, in its wisdom, has decided that Ontario is required to comply with the Heritage Act in these circumstances.
c. The Heritage Act requires, among other things, that a Heritage Assessment Report be obtained addressing heritage issues before these buildings can be demolished.
d. The Heritage Act also requires ‘public engagement’ before demolishing these buildings.”
Let’s look at these in turn.
a. The property was listed by the city under the OHA. (Provincially owned property can be listed by a municipality but not designated.3) The site was also identified as a “Provincial Heritage Property” by the province itself under the terms of the Standards and Guidelines for Conservation of Provincial Heritage Properties (S&Gs), approved by Cabinet under Part III.1 of the OHA.4
b. The OHA requires provincial ministries/agencies that own property to “comply” with the S&Gs.5
c. & d. With respect to demolition on a Provincial Heritage Property the S&Gs stipulate: “All other alternatives having been considered, consider removal or demolition as a last resort, subject to heritage impact assessment and public engagement. Use best efforts to mitigate loss of cultural heritage value.” (Section F.4. of the S&Gs, emphasis added)
The court also notes that the city and province had entered into a “subdivision agreement” covering the lands in question and that under the agreement the province would not demolish heritage buildings without first providing the city with a heritage impact assessment, one that “satisfies” the manager of the city’s Heritage Preservation Services.
As to the province’s transgressions, the court had no trouble finding that they were many:
Infrastructure Ontario [the agency managing the property] decided to demolish the heritage buildings without first providing a Heritage Assessment Report to Toronto in accordance with the subdivision agreement, did not disclose publicly its intention to demolish the buildings, did not disclose publicly the Heritage Assessment Report written by one of its employees, and did not undertake any “public engagement” respecting the demolition of the buildings.
The court concludes: “At this stage it seems more likely to me that these events happened by mistake rather than by decision-makers deliberately flouting the Heritage Act and Ontario’s contractual obligations. However, these matters have now come to light. I am satisfied that it would be to flout the law to carry on with the demolition of these buildings until the matter is laid before a panel of my colleagues in late February.”6
The upcoming court hearing “on the merits” is sure to be interesting; but, whatever the outcome, the province has already lost in the court of public opinion. Wouldn’t a better result be a settlement of the case between the city and the province — one that recommitted both parties to a process for deciding the future of this property and the heritage buildings on it? One that recognizes the province’s obligations and the importance of community engagement?
The Standards and Guidelines for the Conservation of Provincial Heritage Properties were approved by Cabinet in 2010. They are, as intended, largely self-implementing, but with an oversight role by what is now the Ministry of Heritage, Sport, Tourism and Cultural Industries (MHSTCI), which prepared them in the first place.
As the S&Gs themselves note: “[The S&Gs] are mandatory for ministries and prescribed public bodies and have the authority of a Management Board of Cabinet directive.” Serious stuff.
Appropriately, at the time of their approval (now over ten years ago), the ministry began work on a compliance framework or policy for the S&Gs, which was to include MHSTCI reporting yearly to Cabinet on things like how ministries/agencies were or were not complying with the S&Gs and their plans for improvement.
As far as we know, this was never completed.
Anecdotally, most ministries/agencies appear to be doing a reasonably good job of implementing the S&Gs. And MHSTCI staff have been doing their best to keep an eye on things. But there are the occasional bad actors or bad actions like we see in the Dominion Foundry case. And we have no real idea — unless and until they bite us — how many of these there are. Um… where is the accountability here? The transparency?7
As noted by Justice Corbett in his decision: “[T]he Legislature, in its wisdom, has decided that Ontario is required to comply with the Heritage Act in these circumstances.”
A strong compliance framework for the S&Gs, with a public component, is the missing piece here.
Minister MacLeod?
Notes
Note 1: See https://www.cbc.ca/news/canada/toronto/dominion-foundry-demolition-decision-1.5893981
Note 2: See the February 2, 2021 Toronto city council agenda item and background materials here.
Note 3: See subsections 26.1 (1) and (3) of the OHA.
Note 4: The S&Gs are here.
For the history behind the development of the S&Gs see the two OHA+M articles
https://uwaterloo.ca/heritage-resources-centre/blog/post/policies-conservation-provincially-owned-property-part-one
https://uwaterloo.ca/heritage-resources-centre/blog/post/policies-conservation-provincially-owned-property-part-two
Note 5: Subsection 25.2 (6) of the OHA.
Note 6: At the hearing the province’s lawyers cited a high court decision that the test for whether the Crown could be constrained by a court in such circumstances was whether the Crown actor had “flouted the law.” In its decision the court attempts to show how that high standard (by which an “innocent” mistake would not be enough) has been met in the situation here.
Note 7: The S&Gs espouse a number of basic principles, the first of which reads:
Accountability and Transparency
Decisions about provincial heritage properties will be made in an open, accountable way, taking into account the views of interested persons and communities.