To Whom It May Concerned:…

To Whom It May Concerned:

Having reviewed the proposed OHA changes, and having considered them in the context of the other proposed legislative changes, I have the following comments. These comments stem from my experiences as a municipal heritage planner, a consulting planner, and a heritage planning professor. It also reflects discussions with other professional colleagues.

1) While I have no objections to the move from the CRB to LPAT for most appeals, this shift needs to take into account the following:

a. What is the role of the CRB post revisions? Will it be disbanded? If so, then this should be stated. I would ask for clarification if it would still be the body for archaeological matters.

b. The move to the LPAT will intensify the litigious nature of heritage conservation planning (similar to the shift that occurred post-2005). Will support (financial or otherwise) be provided to community organizations, municipalities, and even small developers or homeowners to engage in this process?

c. There needs to be clear requirements for LPAT members overseeing heritage-related LPAT hearings to have heritage expertise, particularly if LPAT members will be expected to understand and engage with debates about heritage significance.

d. I would recommend consideration being given to allowing broader public appeals for situations where an approval body (such as a municipality) is approving works on its own properties. If such works are to be in the public interest, then the public should have an opportunity to object. Otherwise, you have a situation where the approval body is both reviewer and applicant without opportunity for oversight.

2) While I recognize the right of the province to identify a provincial direction, I think the OHA needs a clear statement of intent and purpose. There is not one in place currently, although the Supreme Court in 1982 provided one:

The Ontario Heritage Act was enacted to provide for the conservation, protection and preservation of the heritage of Ontario. There is no doubt that the Act provides for and the Legislature intended that municipalities, acting under the provisions of the Act, should have wide powers to interfere with individual property rights. It is equally evident, however, that the Legislature recognized that the preservation of Ontario’s heritage should be accomplished at the cost of the community at large, not at the cost of the individual property owner, and certainly not in total disregard of the property owner’s rights. St. Peter’s Evangelical Lutheran Church v. Ottawa, [1982] 2 S.C.R. 616, File No.: 16445 St. Peter’s Evangelical Lutheran Church v. Ottawa, [1982] 2 S.C.R. 616, File No.: 16445

To this end, I think it would also be useful to reiterate the legal principle that the exercise of statutory authority must be consistent with the intent of the statute being considered, and not for extraneous purposes. (Supreme Court of Canada - Roncarelli v. Duplessis & Ontario’s Legislation Act, 2006, S.O. 2006, c. 21, Sched. F.) It would also be helpful if the province could provide a clear statement as to its interpretation of the following aspect of this ruling:

The Legislature recognized that the preservation of Ontario’s heritage should be accomplished at the cost of the community at large, not at the cost of the individual property owner, and certainly not in total disregard of the property owner’s rights.

3) I think the timing of NOI should be carefully considered in light of the requirements of Section 14 of the Municipal Act:

Conflict between by-law and statutes, etc.

14. (1) A by-law is without effect to the extent of any conflict with,
(a) a provincial or federal Act or a regulation made under such an Act; or
(b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation. 2001, c. 25, s. 14.

14. (2) Without restricting the generality of subsection (1), there is a conflict between a by-law of a municipality and an Act, regulation or instrument described in that subsection if the by-law frustrates the purpose of the Act, regulation or instrument. 2006, c. 32, Sched. A, s. 10.

Even with the proposed changes, there is still the possibility for an inappropriate use of the OHA when there has not been a formal listing or designation of a property. I have personally seen cases where previously unidentified properties are designated mid-process during a planning application. While recognizing the challenges of undertaking a heritage inventory (and having been the municipal heritage planner responsible) there needs to be greater clarification of when and why a property can identified, particularly in light of the Municipal Act wording, the PPS definition of significance (which recognizes that properties might not be formally identified), and the findings of the Supreme Court. As it is, there is a bit of contradiction between these different documents.

4) While I am not opposed to the revised working of “heritage attributes” from “buildings and dwellings “ for demolition, there will be an unintended consequence if the existing OHA wording remains, particularly with regard to the following section:

34.3 (1) The council of a municipality shall pass a by-law to repeal a by-law or the part thereof designating a property under section 29 if the owner of the property has applied in writing to the council for consent to the demolition or removal of a building or structure on the property and,

(a) the council consents to the application under subclause 34 (2) (a) (i) or (i.1) or is deemed to have consented to the application under subsection 34 (4); or

(b) the Tribunal has ordered that the municipality give its consent under clause 34.1 (6) (b). 2005, c. 6, s. 24; 2017, c. 23, Sched. 5, s. 62.

If not reconciled, this could lead to the legal argument that the removal of ANY heritage attribute constitutes a demolition that thus necessitates the de-designation of a property.

5) As a specialist in CHLs (which were part of my doctoral research), I think there has to be a careful reconsideration of CHLs in general. While I am not opposed to revised processes and approaches for CHLs (as they did not fit well within the traditional divisions of HCDs or Designated Properties), the standard approach to CHLs is outdated, and predicated on 80 year old research. There are significant advances in CHL theory which have not been engaged. I would recommend that CHLs be considered as their own potential category – while recognizing that a CHL can be an HCD or a Heritage property, they are often not bounded by real property limits, an issue that is possible to address through the Planning Act processes, but I would argue is not well suited to the existing OHA framework.

6) There needs to be significant engagement on any regulations and principles put in place. While the changes to the OHA are not, in my opinion, inappropriate per se, the implementation of these changes (such as through the regulations and principles) will have a significant impact.

As a general comment, I would reinforce that it is important that all members of the heritage community be engaged. To date, I have heard derogatory comments about consultants, and even the MTCS engagement process failed to consider the opinion of the very substantial and experienced consultant community. Indeed, the sessions held by MTCS were for 1) the activist and NGO community and 2) municipal heritage planners. This has been my experience with other processes by MTCS. However, the heritage consulting community is critical to the implementation of these changes in a variety of ways. These include:

1) As consultants working for municipalities, governments ministries, or Crown agencies to develop plans, policies, and processes (such as CHER authors or developing HCDs) ;
2) As planners (or heritage consultants) of record (particularly for small municipalities);
3) As the firms that are often representing the development community;
4) As facilitators who work with a variety of stakeholders; and,
5) As trainers and educators.

I have already personally experienced situations where interpretations of the OHA were shared with municipal heritage planners, but not with the broader heritage community, and this had an impact on consulting projects. I would ask that no matter what happens going forward the heritage consultant community gets equal access (and similar meeting time) and that our professional organizations (such as OAHP) remain engaged throughout the process.

Thank you, and if there are any questions or concerns, please do not hesitate to contact me.

Sincerely,
Dr. Marcus R. Letourneau