Industrial Building in Corktown Neighbourhood

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.

Work crews will bulldozers

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.

Protest


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?

Corktown at night


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?


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.

Comments

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Minister MacLeod? You've summed up the problem nicely.

Thank you for defending the Foundry.  They took the opportunity while people mourns and isolates because of Covid 19. Probably they tough lets do it now ...no one will notice. I'm glad this attribution was cought on time.

As Friends of the Foundry who live near the Dominion Foundry buildings, we want to thank you for your expose on this heritage site. In 2004, the City of Toronto exercised its right under s. 27 of the Heritage Act and added the Foundry Property to the City of Toronto’s Heritage Register and in a 2006 report prepared for the Province, Unterman McPhail Associates found that the heritage buildings at the Property were "historically and architecturally significant as a good example of an industrial enclave in the area adjoining the lower Don River." That report also found that the buildings held local significance. It was no surprise that the community was outraged that the Ontario Government began this illegal demolition of these heritage buildings during a Covid lock-down and a petition to Save the Foundry has gained 22,000 signatures. change.org/savethefoundry
 
Neighbourhood groups and local politicians quickly organized protests to stop this demolition post haste. We were unsure that our actions would have any impact.especially knowing that no formal development plans were posted and no community consultation meetings were planned. We actually heard about the demolition through a Facebook post. We called the Premier's office, the Mayor's office and our local Member of Provincial Parliament Peter Tabuns to register our objections to the demolition. After hearing nothing from Premier Ford, we stood at the gate of the Foundry buildings and watched in horror as bulldozers tore down the gate-keepers house and then started punching large holes into the Foundry's exterior brick walls with heavy machinery. Our hearts sank as we yelled at the demolition workers to "Stop!" They ignored our pleas, and began putting up black scrim along the fence-line to obstruct our view of the demolition. And then we observed workers dismantling the heritage sign that designated the Foundry buildings as a historical site. Adding insult to injury, we then approached the demolition foreperson to explain that the demolition was "illegal", but he simply sat in his warm truck and said it was too late to do anything about the buildings as they had a March 1st timeline to complete the demolition.
 
We would not give up and everyday we attended daily protests at the Foundry gates with other neighbours and with a coterie of vocal politicians who were demanding an injunction to halt demolition. When we heard the Mayor of Toronto ask that the demolition cease so that community consultation could commence. We were heartened that our pleas were not in vain.. a court order to stay the demolition was granted. By working together as a City and as a concerned community, we gained the upper hand to preserve our heritage and re-purpose old buildings into something great. A re-development proposal put forth by the International Resource Centre for Performing Artists ( ircpa.net ) has submitted a site plan to the Ontario Government that sought to reinvent the Foundry site buildings with affordable housing and office space including a box office for two performing arts venues, recording studios, a reference music library and record shop (on consignment), and a retail gift shop welcoming visitors, tourists and community members. Read:.https://ircpa.net/.../2020/11/Foundry-Background-Study.pdf
 

Toronto has many examples of preserving its history and turning it into wonderful neighbourhoods--the Distillery District one block from the Foundry buildings is a perfect example of what Jane Jacobs describes as turning old buildings into great ideas. We will be watching the Divisional Court proceedings on February 26th, 2021 on Youtube and hoping that we get a permanent stay of the demolition of the Foundry buildings with a plan put forward to re-purpose the Foundry to what the community needs.

But Ontarians must be vigilaent and active against egregious Minister's Zoning Orders (MZO's) that cut out any community consultation around heritage redevelopment and environmental protection. An MZO is meant for situations of extraordinary urgency as it overrides local planning authority to approve development without expert analysis, public input, or any chance of appeal. Since taking office, the Ford government has been issuing MZOs at an extraordinary rate to impose low-density sprawl and other risky development on wetlands and other protected lands.

For example. ten (10) MZO's overrode agricultural designations with significant impacts on or near Ontario wetlands, specifically, Lower Duffins Creek, East Humber River, Terra Cotta and Heart Lake Conservation area, the Oak Ridges moraine (in Aurora) and on the Niagara Escarpment in Hamilton. While MZO's are being issued under the cover of the present pandemic, and often hint at some thematic connection, almost none of the development authorized by these MZOs makes any plausible contribution to the fight against COVID-19, especially when it comes to the destruction of a heritage site in the West Donlands. The present Conservative government has already approved more Minister’s Zoning Orders since the pandemic began than the previous government did in 15 years! This has got to STOP as it is very difficult to find information about MZOs on the Ontario government’s website or to even get a meeting with Ministry officials to rescind or halt such order

Without community input and proper study, the Ford government is plowing under Ontario's heritage buildings, productive farmland and ecologically sensitive Great Lakes wetlands to build Smart Centres, warehouse facilities, condos and an automotive test track in Oro Medonte. The Premier is letting developers destroy what many Ontarians hold sacred so that political donations will stabilize Ford's hackneyed pursuit of another Conservative government in 2022. Let's not forsake our architectural and environmental legacy for political opportunism and malevolent greed!

About Dan Schneider

Dan Schneider Portrait Image

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.