Simon's Megalomaniacal Legal Resources

Real Property - Ontario Heritage Act (OHA)

. Centurion Building Corporation v. The Shaw Festival

In Centurion Building Corporation v. The Shaw Festival (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a JR, this where "planning applications were granted and a demolition permit was issued" regarding the old Royal George building in Niagara-on-the-Lake.

Here the court considered the Ontario Heritage Act:

(b) The “Conservation First” Analysis

[54] The applicant submits that the “conservation first analysis” on which its argument is based is mandated by the OHA. In support of this contention, the applicant relies on the following portion of St. Peter’s Evangelical Lutheran Church (Ottawa) v. Ottawa (City), 1982 CanLII 60 (SCC), [1982] 2 S.C.R. 616, at p. 625:

In the Ontario Court of Appeal, as well as in the High Court, the purpose of the Act, that is the preservation and protection of Ontario’s heritage, was recognized and the statute was characterized as remedial. MacKinnon A.C.J.O. said:

We are of the view that the matter really comes to a narrow compass on the particular and peculiar facts of this case. It should be said at the opening that the object and purpose of The Ontario Heritage Act is clear. It is to preserve and conserve for the citizens of this country inter alia, properties of historical and architectural importance. The Act is a remedial one and should be given a fair and liberal interpretation to achieve those public purposes which I have recited.

Based on this, the applicant submits that the OHA imposes a duty on municipalities to conserve heritage properties whenever feasible. I do not agree.

[55] St. Peter’s Evangelical Lutheran Church was a case about the deemed consent provisions in the OHA that applied when a municipality failed to make a decision on an application for a demolition permit within a specified timeframe. There is nothing in the decision or the OHA itself that supports the applicant’s position that the preservation of properties in a heritage area is some sort of superordinate objective. The OHA protects Ontario’s heritage by ensuring that it is considered when certain decisions are made that may impact it. The Act gives municipalities powers to interfere with private property rights in order to protect heritage and provides a procedure to govern those powers, but it does not require municipalities to exercise their powers in a particular way, nor does it completely disregard the rights of property owners: St. Peter’s Evangelical Lutheran Church, at pp. 623-624; Clublink Corporation ULC v. Oakville (Town), 2019 ONCA 826, 148 O.R. (3d) 513, at paras. 46-48.

[56] In cases such as this, s. 42(1) of the OHA gives the municipality the power to decide whether or not to issue a demolition permit to the landowner, and s. 42(4.1) requires the municipality to consult its heritage committee (if it has one) before making the decision. Section 42(2.2) leaves it to the municipality to decide what information it requires to make the decision. Beyond that, the Act does not direct how municipalities are to make decisions, what factors to consider or what information to rely on. Ultimately, whether or not to approve demolition is a policy decision: My Rosedale Neighbourhood v. Dale Inc., 2019 ONSC 6631 (Div. Ct.), 94 M.P.L.R. (5th) 151, at paras.16-29.

. Rockcliffe Park Residents Association v. City of Ottawa

In Rockcliffe Park Residents Association v. City of Ottawa (Div Court, 2024) the Divisional Court allowed an motion to strike affidavits in the JR record, here where a residents' association applied to challenge the City's "issuance of a heritage permit under section 42 of the Ontario Heritage Act":

[2] The application for judicial review (the Application) arises out of the issuance of a heritage permit under section 42 of the Ontario Heritage Act[1] (OHA) to construct a new building at the address municipally known as 480 Cloverdale Road in Rockcliffe Park, subject to the conditions set out in the permit.

[3] The village of Rockcliffe Park has been declared a Heritage Conservation District (the Rockcliffe Park Heritage Conservation District or RPHCD), pursuant to s. 41 of the OHA. Section 42(1) of the OHA requires property owners to obtain a permit (heritage permit) from the municipality prior to erecting any building or structure in a designated heritage conservation district.

[4] When an application for a heritage permit for construction in the village of Rockcliffe Park is submitted to the City, a City Planner reviews the application, consults with the RPRA, and prepares a report with a recommendation to the Built Heritage Committee (BHC) on whether to approve the application. The BHC studies the application and report, hears submissions by the RPRA and then submits its recommendation to City Council. City Council then reviews the record and makes a decision on the application.

. Markham (City) v. Ross

In Markham (City) v. Ross (Ont CA, 2024) the Court of Appeal considers (and dismisses) an appeal by a homeowner against a municipally-obtained order compelling then to comply with a 'Heritage Easement Agreement' [under s.37(3) of the Ontario Heritage Act]:

[1] Martin Ross appeals a judgment granting the Corporation of the City of Markham’s application to enforce various rights under a registered on the title of Mr. Ross’s property in Unionville, Ontario. The application judge held that Mr. Ross had breached his obligations under the Agreement, and that these breaches entitled the City to enter upon the property to conduct remedial work at Mr. Ross’ expense. The application judge also granted a permanent injunction preventing Mr. Ross from undertaking any further work on the rear yard of the property in breach of the Agreement and any applicable municipal by-laws.

[2] The appellant’s Unionville property consists of a house built between 1859 and 1870, known as the John M. Ramer House, as well as the land on which it sits. The Agreement was entered into by the City and previous owners of the property and notice of the easement was registered on title in 2004 under ss. 37(3) of the Ontario Heritage Act, R.S.O. 1990, c. O.18. Under the Agreement, the owner is prohibited from making certain types of alterations to the property without the City’s prior written approval. Some prohibitions are specific to the house. Others pertain to the land on which it sits. For example, under s. 2.8 of the Agreement, the owner is prohibited from committing “acts of waste” on the land without the City’s prior written approval. This includes erecting any “building, sign, fence or other structure of any type whatsoever”, allowing any “changes in the general appearance or topography of the lands”, except for the maintenance of existing improvements, and (with some exceptions) removing or cutting trees.

[3] The appellant purchased the property, subject to the Easement Agreement, in 2011. He applied for tax reductions for the 2013, 2014, 2016 and 2017 taxes years pursuant to the City’s Heritage Property Tax Reduction Program and received tax rebates of $1,164 and $1,372 for the latter two years.

[4] Beginning in the spring of 2021, the appellant began cutting down trees and regrading his backyard. He then laid a 60 foot by 80-foot concrete pad for a hockey rink and installed a cabana made from one or more repurposed shipping containers. All these steps were taken without the City’s authorization, and before the appellant sought permits required for the work.

[5] When the City was alerted to the appellant’s actions, it sent him a series of notices between May 2021 and September 2022, advising him that he was in breach of the Agreement and municipal by-laws. It also gave him verbal warnings. The appellant did not restore the property to its original state, although he did plant some trees. Over this same period, the appellant was charged under the Provincial Offences Act, R.S.O. 1990, c. P.33 and convicted of violating the City’s tree preservation by-law, the Building Code Act, 1992, S.O. 1992, c. 23, and the Fire Code and Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4. His application for a retroactive Heritage Permit was denied in late September 2021.

[6] The City commenced its application for orders to enforce the Easement Agreement in April 2022. In her December 2022 judgment, the application judge found that the appellant had violated s. 2.8 of the Agreement. She rejected his argument that it prohibited only activities that might negatively affect or detract from the architectural value of the house. Reading the Agreement as a whole, she concluded that the parties intended “to cede a large measure of control over the Property, including the grounds, to the City.” She found that there was “no question” that the appellant had breached the Agreement.

[7] The appellant has not identified an extricable error of law or a palpable and overriding mixed error of fact and law in the application judge’s interpretation of the Agreement, her appreciation of the evidence, or her assessment of the remedies sought by the City.

[8] The appellant contends that the application judge failed to interpret the appellant’s obligations under s. 2.8 in the context of the Agreement’s objectives, or to meaningfully consider evidence that the City’s reaction to the work on the property was based not on a genuine desire to preserve the heritage aspects of his property but was instead motivated by political or other purposes. He relies, in particular, on a report by City staff which recommended that the appellant be retroactively granted a Heritage Permit.

[9] The appellant advanced these same arguments at the application hearing. The application judge considered and rejected them. This court must defer to the application judge’s assessment of the evidence in the absence of any palpable or overriding error. We see none here.

[10] The appellant contends that the application judge’s decision sets a dangerous precedent because she found that the Agreement gives the City the sole discretion to decide if the appellant has breached his obligations and whether any such breach has been sufficiently remedied. The City acknowledged in oral argument, however, that it must exercise its discretion in good faith. As this court stated in Marshall v. Bernard Place Corp. (2002), 2002 CanLII 24835 (ON CA), 58 O.R. (3d) 97 (C.A.), at para. 20:

The requirement of honesty and good faith applies whether the exercise of discretion is measured by an objective or subjective standard … No contractual discretion is absolute, in the sense of authorizing the capricious or arbitrary exercise of the discretion. Greenberg confirmed that even a broadly stated contractual discretion is not "unbridled" and is subject to established limits. Further, as illustrated in Inglis, even where the operative standard of reasonableness is an objective one, it can only be satisfied if the discretion or opinion at issue was "reasonably formed" in the circumstances. [Citations omitted.]

[11] We are satisfied that this case does not establish a precedent allowing the City to exercise an unfettered discretion to interfere with a property owner’s rights. The outcome was driven by the specific facts of this case. The appellant violated the Easement Agreement on any reasonable reading of s. 2.8. There is no evidence that the City acted capriciously, arbitrarily, or in bad faith. The application judge found that the appellant continued to violate the Agreement despite receiving notices and verbal warnings and being charged and convicted of breaching building code, fire code, and municipal by-law requirements. She found the situation was so exceptional that it warranted the granting of both declaratory relief and a permanent injunction.