Comments on Bill 23,…

Comments on Bill 23, Schedule 6 Ontario Heritage Act

I submit these comments based on 25+ years of professional experience in the cultural heritage field - first as a consultant, then as a heritage specialist for the provincial government, followed by managing the heritage department at an architecture firm and now as a partner in a heritage consulting firm.

Generally, I find the proposed amendments to be arbitrary, vague and excessively broad. Most will have a negative impact on the conservation of heritage properties in Ontario. None identify how they will advance the construction of housing in the province. My detailed comments are provided below.

Section 27
New requirements for municipal registers and the
inclusion of non-designated properties on the municipal register.

Proposed Change
New subsection 27(1.1) requires “municipalities to make an up-to-date version of the information on their municipal register available on a publicly-accessible municipal website.”

Comments: Many municipalities already maintain publicly accessible registers. These range from pdf documents to searchable databases to interactive maps. However, they can be five or more years old. Regardless, registers containing current information are a benefit to property owners and heritage professionals working on those properties.

The proposed change is a positive amendment which supports the conservation, protection and preservation of properties in Ontario.

Recommendations: Recommend that the term ‘up-to-date’ be defined or guidance provided to municipalities as to how often to update their registers.

Proposed Change
Subsection 27(3) will increase the standard for including a non-designated property on a municipal register by requiring that the property meet prescribed criteria. MCM is proposing to have the criteria currently included in O. Reg. 9/06 apply to non-designated properties included on the municipal register and is proposing that the property must meet one or more of the criteria to be included, which would be facilitated through a regulatory change. MCM is further proposing that this requirement would apply only to those non-designated properties added to the municipal register on or after the date the legislative and regulatory amendments come into force.

Comments: Some municipalities are essentially using this approach to listing through a ‘screening’ process whereby one or more properties are screened against O. Reg. 9/06 to identify potential cultural heritage value or interest. The potential cultural heritage value or interest can then be substantiated through a Cultural Heritage Evaluation Report (CHER) which requires in-depth research and analysis in order to support a designation by-law.

The proposed change is generally a positive amendment which supports the conservation, protection and preservation of properties in Ontario.

Recommendations: If criteria are to be prescribed, it is strongly recommended that the criteria in O. Reg. 9/06 be used. The threshold for listing should remain at one criteria.

Proposed Change
Subsections 27 (7), (8) and (13) will allow property owners to use the existing process under the OHA for objecting to the inclusion of their non-designated property on the municipal register regardless of when it was added to the municipal register.

Comments: Currently subsection 27 (7) and (8) permits a property owner to object inclusion on the register for properties included on or after July 1, 2021. It is unclear on what basis a property owner would object to a listing made prior to July 1, 2021.

This is a negative amendment and diminishes the conservation, protection and preservation of properties in Ontario.

Recommendations: Recommend retaining the status quo. Property owners still retain the right to object to listings going forward and to the designation of their property.

Proposed Change
New Subsections 27 (14), (15), (16) requires that non-designated properties currently included on a municipal register would have to be removed if council does not issue a notice of intention to designate (NOID) within two years of the amendments coming into force.

Comments: This proposed amendment is arbitrary in terms of the two year timeframe for issuance of a NOID. It does not consider how many properties across the province will be affected by this, nor how many properties currently included on municipal registers are potential housing development sites. In short, this amendment does nothing to promote housing, rather it applies a blanket requirement on every municipality in Ontario regardless of current and proposed housing developments. It does not exempt municipally-owned properties. Why would a municipality remove one of its own properties from a register? Further, why should provincially-owned or controlled properties be removed if they are not subject to designation by municipalities?

It is also redundant given that Subsection 27(3) will require a higher standard for inclusion on a register using prescribed criteria, and that property owners have the right to object to their property being included on a register. Additionally, subsection 29 (1.2) is proposed to be re-enacted to provide that the municipality may give a notice of intention to designate the property only if the property was included in the register under subsection 27 (3) as of the date of the prescribed event.

Moreover, subsection 27(3) requires increasing the standard for inclusion on a register. Why make municipalities undertake more work only to have it negated after two years?

Subsection 27 (1.3) requires that before including a property on a register that the municipality consult with a municipal heritage committee. In my experience, the process for including properties on a register is substantial and transparent. It includes: public consultation; a heritage professional’s recommendations to city staff regarding heritage cultural heritage value or interest and a city staff reports to municipal heritage committee.

This is a negative amendment and diminishes the conservation, protection and preservation of properties in Ontario.

Recommendations: Given that this amendment will impact upwards of 30,000 properties in Ontario (based on ACO estimate), it is imperative that it be removed from Bill 23 Schedule 6.

It is strongly recommended that MCM consult with the heritage community - volunteers, public and private sector heritage professionals on processes and timelines for either designating or removing ‘listed’ properties.

Proposed Change
Subsection (17) maintains that consultation with the Municipal Heritage Committee is not required if a property is removed from the Register because the two-year time period has elapsed.

Comments: If subsection 27 (1.3) requires that before including a property on a register that the municipality consult with a municipal heritage committee why would not its removal also require consultation? This amendment is inconsistent with current requirements set out in the OHA.

This is a negative amendment and diminishes the conservation, protection and preservation of properties in Ontario.

Recommendations: Until MCM can provide a rationale as to why this amendment is required, it should be removed Bill 23 Schedule 6.

Proposed Change
Subsection (18) prohibits properties removed from a register under subsections 14, 15, 16 may not be listed again for a period of five years.

Comments: This proposed amendment is arbitrary in terms of the five year timeframe.

This is a negative amendment and diminishes the conservation, protection and preservation of properties in Ontario.

Recommendations: Until MCM can provide a rationale as to why this amendment is required, it should be removed Bill 23 Schedule 6.

It is strongly recommended that MCM consult with the heritage community, particularly public sector heritage professionals on appropriate timelines for how and when properties are removed from a register.

Section 29
An increase in the threshold for designation of individual properties
and new limitations on designation for properties subject to proposed development.

Proposed Change
It is proposed to increase the threshold for the designation process by requiring that a property meet two or more of the criteria prescribed in regulation. This change would be achieved through a regulatory amendment to O. Reg. 9/06.

Comments: It is not clear what this amendment is trying to address and why at least two criteria must be met. Has MCM conducted analysis into how many properties have been designated based on one O.Reg. 9/06 criteria? Of these, how many have been the subject of an objection? How many are prospective housing development sites?

This is a negative amendment that diminishes the conservation, protection and preservation of properties in Ontario.

Recommendations: Until MCM can provide a rationale as to why this amendment is required, it should be removed Bill 23 Schedule 6.

Prior to making any other amendments to Section 29, it is strongly recommended that MCM consult with the heritage community, particularly public and private sector heritage professionals.

Part III.1
Changes affecting the Standards and Guidelines
for Conservation of Provincial Heritage Properties

Proposed Change
MCM is proposing to introduce an enabling legislative authority that provides that the process for identifying provincial heritage properties under the S&Gs may permit the Minister of Citizenship and Multiculturalism to review, confirm and revise, the determination of cultural heritage value or interest by a ministry or prescribed public body respecting a provincial heritage property. This process for Ministerial review would be set out through a revision to the S&Gs and may be applied to determinations made on or before the change comes into effect. If Bill 23 is passed, the ministry would develop and consult further on the proposed process under the S&Gs.

Comments: The S&Gs require that prescribed public bodies “develop and implement a cultural heritage conservation policy and procedures(s) to identify and manage provincial heritage properties consistent with [the S&Gs].” In addition, the ministry responsible for the S&Gs is the approval authority for the identification and evaluation process. Moreover, some prescribed public bodies have approved and well-established processes, but additionally heritage committees which review and approve of cultural heritage evaluation recommendations made by heritage professionals.

As such, it is unclear why this amendment is required. Further, applying it to determinations made prior to Bill 23 coming into effect undermines the effort undertaken to date by Ministries prescribed public bodies to identify and conserve provincial heritage properties.

This is a negative amendment that diminishes the conservation, protection and preservation of properties in Ontario.

Recommendations: This amendment must be removed from Bill 23. The Government of Ontario must be a leader in the identification and conservation of heritage properties, of local and provincial value in its ownership and control.

In order to be transparent and equal to the proposed requirements for municipal registers being up to date (subsection 27(1.1)), the government of Ontario must make the list of provincial heritage properties as well as their statements of heritage value publicly available.

Proposed Change
The Lieutenant Governor in Council may, by order, provide that the Crown in right of Ontario or a ministry or prescribed public body is not required to comply with some or all of the heritage standards and guidelines approved under this section in respect of a particular property, if the Lieutenant Governor in Council is of the opinion that such exemption could potentially advance one or more of the following provincial priorities:

● Transit.
● Housing.
● Health and Long-Term Care.
● Other infrastructure.
● Such other priorities as may be prescribed.

Comments:
Again, it is unclear why this amendment is required. The S&G do not prohibit development on any provincial heritage property. The S&Gs does require that Ministeries and prescribed public bodies make “best efforts to avoid uses which adversely affect the cultural heritage value of a provincial heritage property” (E.3) and that demolition is considered as a “last resort, subject to heritage impact assessment and public engagement.” (F.4) This is best heritage conservation practice.

The S&G apply to the ongoing protection, maintenance and use of provincial heritage properties as well as best practices for disposal and demolition. As a result, this amendment is too broad in its potential application. Would the government exempt itself from maintaining Osgoode Hall or the Sioux Lookout Courthouse (D1-D5), or mothballing the former Kingston Psychiatric Facility or Guelph Correctional Facility (F1-F4). Would it exempt itself from Minister’s consent requirements for demolitions at Ontario Place or any other provincial heritage property of provincial significance (F5)?

This is a negative amendment that diminishes the conservation, protection and preservation of properties in Ontario.

Recommendations: This amendment must be removed from Bill 23. The Government of Ontario must be a leader in the identification and conservation of heritage properties, of local and provincial value in its ownership and control.

In order to be transparent and equal to the proposed requirements for municipal registers being up to date (subsection 27(1.1)), the government of Ontario must make the list of provincial heritage properties as well as their statements of heritage value publicly available.

Thank you.