This time we welcome another guest contributor: Gordon Prentice.
Gordon is the past president of the Newmarket Branch of Architectural Conservancy Ontario. He was a Labour MP at Westminster from 1992-2010. Since coming to live in Canada he has blogged on local politics, planning and development issues at www.shrinkslessorsquare.ca.
Overnight on October 9-10, 2019, a unique heritage building in Newmarket’s historic Main Street, dating from the 1840s, was unlawfully demolished.1
The structure, known as the Simpson Building, was once the apothecary of Ontario’s first female pharmacist, Anne Mary Simpson, and it lay in the heart of the Town’s only Heritage Conservation District.
The 1840s Simpson Building
The owner, property developer Bob Forrest, had spent years trying to persuade the Town to allow him to knock down a row of historic commercial buildings on Main Street while retaining their façades. He wanted to build a towering, out-of-place condominium development crowding and dominating the Clock Tower next door — the individually designated 1914 Federal Post Office which he also owned. His plan was hugely controversial.
Developers have deep pockets and time on their side. They take the long view, can sit out protests and wait for any opposition to dissipate, as it so often does.
One of Bob Forrest’s earlier condo concepts, which he thought would fit in nicely
Forrest had been courting councillors since 2011. It was a long drawn out affair. He successively offered them three variants of his boxy design with the highest condo coming in at nine storeys, looming over the historic downtown. Only the then mayor, Tony Van Bynen (now the Newmarket-Aurora MP), took the bait. In April 2016 he declared: “The Clock Tower is a great example of the intensification we need."
In the event, his was the lone vote in favour and the condo development was rejected in December 2016. Forrest was furious. He had spent years and barrowloads of cash on his project and it had all turned to dust.
In May 2018 Bob Forrest struck a deal with the Town obliging him to restore his crumbling heritage buildings. But, importantly, the Town insisted there should be no new construction.
At every stage Forrest was aware of the heritage value of his properties. He had commissioned not one but two Heritage Impact Assessments. He knew his way around the Ontario Heritage Act. As a developer of long standing, he was familiar with the Building Code Act and knew he could not lawfully knock down a building without a demolition permit.
But he went ahead anyway, perhaps calculating that the worst that could happen would be a fine — and he could write that off as the cost of doing business.
Forrest’s decision to demolish was calculated, not inadvertent. He had been told, by the man in charge of the building works on site, that after years of neglect it would cost $100,000 to stabilize the Simpson Building and make it safe. Forrest then ordered him to “take it down.”
The hole where the Simpson Building used to be
The deliberate destruction of such an early and historic building in the middle of a Heritage Conservation District appears to be without precedent in Ontario. Despite this, the Town decided not to prosecute2, reaching agreement with him on January 17, 2020, without going to court. Forrest admitted full responsibility and agreed to rebuild to heritage standards the property he had demolished. He also paid a $100,000 penalty to the Town and forfeited Town grants of $100,000 towards the restoration of the neighbouring historic façades.
The new mayor, John Taylor, described the agreement as a “very strong outcome”, getting buildings that were empty for years occupied again, breathing new life into the old downtown. He said any penalty imposed by the courts would not match what Newmarket had achieved and that the Town would avoid the delays and expense of going to court.
For illegal demolition the Ontario Heritage Act sets a maximum penalty of $1M or a term of imprisonment, but nothing so draconian has ever been handed down by the courts.3
I contacted all 54 municipalities that are home to Ontario’s 134 Heritage Conservation Districts asking if they had ever brought a prosecution under section 42(1) of the Ontario Heritage Act and/or section 8 of the Building Code Act for an unlawful demolition within a Heritage Conservation District.4
Many, like Newmarket, have a single HCD. But at the other end of the spectrum we have Ottawa and Toronto with 20 each.
Only two municipalities — Markham and Ottawa — reported unlawful demolitions in their HCDs where prosecutions were brought under the OHA. But even in those cases the circumstances were very different from those in Newmarket. The fines imposed were modest, in the region of $10,000.
What happened in Newmarket was an avoidable tragedy. The Town took its eye off the ball and allowed the developer to leave one of the Town’s most historic buildings empty for years. The inspection regime was too lax and forgiving. However, a new report from the Town’s planning staff, “Discouraging the Unauthorized Demolition of Designated Heritage Buildings”5, gives us hope that nothing like this will ever be allowed to happen again. We are told to expect a new and more robust enforcement of the Property Standards By-Law “to better ensure compliance with heritage provisions.”
Unlawful demolitions in Heritage Conservation Districts are very rare but when they do happen it is surprisingly difficult to get the details. Newmarket struggled to find examples elsewhere — and when they did unearth information it was kept confidential to councillors and was not discussed in open session.
Unfortunately, there is no single repository of information on unlawful demolitions in Ontario and what happens afterwards. The legal databases do not catch the examples that are settled out of court. Nor, so far as I can gather, are there any academic knowledge bases that capture both types.
Because of this, even heritage specialists hesitate to suggest what the most appropriate penalty for the deliberate demolition of a heritage building within a Heritage Conservation District might be.
That said, the possibility of a $1M fine or even jail time is no deterrent for some developers who can make millions in profit from a single planning decision, as the Newmarket case clearly shows.
The Forrest buildings under restoration; work has yet to begin on the “new” Simpson Building
Notes
Note 1: Local press coverage is here.
Note 2: The municipal staff report is here.
Note 3: Section 69(3).
Note 4: Section 42(1) of the OHA 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.
Section 8(1) of the Building Code Act says:
No person shall construct or demolish a building or cause a building to be constructed or demolished unless a permit has been issued therefor by the chief building official.
Note 5: The report is here.