The Issue

Does the Ontario Municipal Board have jurisdiction under s. 34(1) of the Ontario Heritage Act to consider the partial demolition of a designated heritage property?

Answer

Yes. The OMB may exercise jurisdiction over these types of cases.

In Rams Head Development Inc. v. Toronto (City) (November 4, 2010) No. PL090501, the Ontario Municipal Board (“Board”) considered an application under s. 34(1) of the Ontario Heritage Act (“OHA”) to demolish part of a building designated under Part IV of the OHA, along with a related zoning by-law amendment and site plan application.

Rams Head’s initial development application included a proposal to demolish the entire three-storey designated building known as the National Hotel, which has been listed on the City’s inventory of heritage properties since 1973 and was designated by the City in late 2009. Once demolished, Rams Head proposed to reconstruct the two principal facades of the building using salvaged materials. City staff did not support Rams Head’s demolition application, although heritage staff indicated a willingness to reconsider the application if Rams Head agreed to retain the two principal facades in situ rather than demolish and then reconstruct them.

Ultimately, City Council refused the demolition permit application and Rams Head appealed this refusal to the Board concurrent with its appeals under the Planning Act. Subsequently and prior to the hearing, Rams Head revised its demolition application to reflect staff’s recommendation that the two walls be retained in situ, proposing instead to demolish the remainder of the structure.

The OHA contemplates both the alteration and the demolition/removal of designated heritage properties. The OHA also distinguishes between applications to alter (pursuant to s. 33) and applications to demolish or remove a designated heritage property (pursuant to s. 34). “Alter” is defined to mean “to change in any manner and includes restore, renovate, repair or disturb and ‘alteration’ has a corresponding meaning.” “Demolition” is not a defined term in the OHA.

Pursuant to the OHA, an applicant that seeks to alter the heritage attributes of a designated property must apply to and obtain the consent of Council. If Council refuses to permit the alteration, this decision is final and not appealable to the Board (s. 33(13)).

In contrast, an applicant that seeks to demolish or remove a designated building or structure likewise must submit an application to Council; however a decision by Council to refuse the demolition or removal is appealable to the Board (s. 34.1(1)).

In Rams Head Development Inc. v. Toronto (City), the City’s expert heritage witnesses gave evidence that Rams Head’s proposal to retain two walls of the National Hotel in situ constituted an “alteration” and the Board was, therefore, without jurisdiction to consider the application as the decision of Council was final (pursuant to s. 33(13)). However, the City ultimately did not advance this position or formally challenge the Board’s jurisdiction to hear the appeal. Regardless, the Board noted in its Decision that s. 34(6) of the OHA provides that the Board may order a municipality to consent to the demolition of a building “with such terms and conditions the Board may specify.” The Board also found that the OHA “does not impose any restrictions on the terms and conditions the Board may specify in the Order issued under s. 34.1(6)(6).”

The Board concluded that it had the jurisdiction to hear and decide Rams Head’s appeal under s. 34(1) of the OHA, including the possible specification of terms and conditions of Rams Head’s proposal. After a thoughtful consideration of the merits of the planning proposal and the City’s heritage policies, the Board ordered that the City consent to the demolition.

While the Board’s reasons note that “demolition” is not defined in the OHA, the Board does not mention or attempt to reconcile the fact that “alter” is a defined term, meaning “to change in any manner...”. The Board’s silence on this point, coupled with its reasons for decision, appears to have narrowed the interpretive scope of the concept of an “alteration” to a heritage building or structure. The Board’s decision suggests that applicants who propose to demolish or remove a portion – small or large – of a heritage building ought to frame the application as one for demolition (with proposed conditions, as necessary) rather than an alteration. This will permit the applicant the flexibility, if refused by Council in the first instance, to appeal to the Board and have the merits of its application assessed in the context of a full hearing.

Going forward, the Board’s decision may also prove to be an impetus for demolition permit applications to municipal councils with proposed conditions, since s. 34(2)(a)(i.1) gives Council itself the authority to impose conditions on demolition applications. It is difficult to see what an applicant has to lose by framing its application as a partial demolition with conditions rather than as an alteration. Even if the application is refused by Council, the applicant may nonetheless proceed with an appeal to the Board, either with the same or different proposed conditions and, perhaps, with a greater or lesser demolition component.