Toronto Hudson Toronto Hotel | 45.72m | 14s | Niche | a—A

I remember one of the selling agents for a unit in the building mentioning the lawyer who's determined to drag this out as long as possible... and to not "worry" about a potential obstruction as the issue has been going on "forever"...
 
I can see the argument for the preservation of the “John P. Jackson House” and “Eliza Lennox Houses”. I can see the argument being made for their removal and in support of the development.

The problem is that after years and years (!) of tribunal and court processes that debate was never actually had on its merits.

What happened was that at the very late stages of a zoning appeal before the LPAT, the City file a Notice to designate the properties under the Heritage Act. Both the proponent and the LPAT viewed this as an attempt the derail an appeal under the Planning Act, when those same heritage bona fides would be part and parcel of the Planning Act appeal. The LPAT refused to adjourn the Planning Act appeal pending a Heritage Act designation and appeal. The proponent understood that the substantive heritage dispute was already before the tribunal, and didn’t formally appeal the designation under the Heritage Act.

During the LPAT zoning appeal (under the Planning Act), the proponent challenged the City’s substantive heritage position and called expert evidence that the properties had little heritage value (that the LPAT accepted). The City refused to substantively respond. The City tendered no evidence on point and simply took the position that the properties were already “designated” and so all the authority under the Planning Act to consider questions of heritage were moot. They never actually put their cards on the table before the LPAT as to why these properties warrant preservation.

Justice Perell at the ONSC Div Court went in for this, finding that once designated under the Heritage Act, the LPAT had no jurisdiction to question this on a Planning Act appeal.

The whole thing reeks of legal fiction. The proponent obviously contested the City’s substantive heritage case and put all its cards on the table challenging that position.

(I’m also not sure where Justice Perell draws the conclusion that the Heritage Act has “paramountcy” over the Planning Act.. it certainly doesn’t say that in the Planning Act’s preamble as he seems to argue).

The City stood on form. And in this case, it was form over substance (…or at least the substantive debate was never held on a fulsome record, so who knows). Absolutely bloody-minded, hard-nosed litigation tactics from the City’s Solicitor.

How any of this is in the public interest is beyond me.
 
Y
bilked said:
I can see the argument for the preservation of the “John P. Jackson House” and “Eliza Lennox Houses”. I can see the argument being made for their removal and in support of the development.

The problem is that after years and years (!) of tribunal and court processes that debate was never actually had on its merits.

What happened was that at the very late stages of a zoning appeal before the LPAT, the City file a Notice to designate the properties under the Heritage Act. Both the proponent and the LPAT viewed this as an attempt the derail an appeal under the Planning Act, when those same heritage bona fides would be part and parcel of the Planning Act appeal. The LPAT refused to adjourn the Planning Act appeal pending a Heritage Act designation and appeal. The proponent understood that the substantive heritage dispute was already before the tribunal, and didn’t formally appeal the designation under the Heritage Act.

During the LPAT zoning appeal (under the Planning Act), the proponent challenged the City’s substantive heritage position and called expert evidence that the properties had little heritage value (that the LPAT accepted). The City refused to substantively respond. The City tendered no evidence on point and simply took the position that the properties were already “designated” and so all the authority under the Planning Act to consider questions of heritage were moot. They never actually put their cards on the table before the LPAT as to why these properties warrant preservation.

Justice Perell at the ONSC Div Court went in for this, finding that once designated under the Heritage Act, the LPAT had no jurisdiction to question this on a Planning Act appeal.

The whole thing reeks of legal fiction. The proponent obviously contested the City’s substantive heritage case and put all its cards on the table challenging that position.

(I’m also not sure where Justice Perell draws the conclusion that the Heritage Act has “paramountcy” over the Planning Act.. it certainly doesn’t say that in the Planning Act’s preamble as he seems to argue).

The City stood on form. And in this case, it was form over substance (…or at least the substantive debate was never held on a fulsome record, so who knows). Absolutely bloody-minded, hard-nosed litigation tactics from the City’s Solicitor.

How any of this is in the public interest is beyond me.
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You are obviously not a lawyer. Sometimes form is all that matters in the law. If the OLT was not in fact empowered to consider the substance of the heritage designation, the OLT decision would set a wrong precedent that would apply to all future planning decisions. The City was basically required to challenge this, nothing hard-nosed about it.
 
mcornett said:
Y

You are obviously not a lawyer. Sometimes form is all that matters in the law. If the OLT was not in fact empowered to consider the substance of the heritage designation, the OLT decision would set a wrong precedent that would apply to all future planning decisions. The City was basically required to challenge this, nothing hard-nosed about it.
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Before you enlighten me with other insights about myself, why don't you show me where exactly in Planning Act or Heritage Act (or elsewhere in the jurisprudence) the latter is given "paramountcy" (in Justice Perell"s words) over the former . That's an argument he's put together to justify a legal result. He's the judge so that carries the day for now, but I suspect it will be the Court of Appeal who has the last word.

And if the City wasn't engaged in hard-nosed litigation tactics, why exactly did the Notice to Designate under the Heritage Act only come at the 11th hour of the pending LPAT appeal?
 
Many of us are probably not lawyers here, but that doesn't stop us (or shouldn't stop us) from commenting of legal stuff of least what we know...even if we're right or wrong on it. It's the only way we're gonna learn about this stuff without going to law school or paying a lawyer to explain it otherwise, IMO.
 
I
bilked said:
Before you enlighten me with other insights about myself, why don't you show me where exactly in Planning Act or Heritage Act (or elsewhere in the jurisprudence) the latter is given "paramountcy" (in Justice Perell"s words) over the former . That's an argument he's put together to justify a legal result. He's the judge so that carries the day for now, but I suspect it will be the Court of Appeal who has the last word.

And if the City wasn't engaged in hard-nosed litigation tactics, why exactly did the Notice to Designate under the Heritage Act only come at the 11th hour of the pending LPAT appeal?
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I apologize, that sounded condescending.

I read the entire judgement and basically it boils down to there being two different processes. The proper way to challenge a heritage designation is by making an appeal of the designation or the refusal of a demolition permit under the Heritage Act. It entails an entirely different process / legal test for heritage protection than the Planning Act, so it can’t just be skipped by the OLT. Likely for tactical reasons, the developer chose not to go this route, which may end up being a fatal choice. TBD. Also, the OLT was criticized for essentially disregarding Council’s decision to designate.

Justice Perell has been a judge for a long time. He’s been wrong before, like all judges, but he explains himself very clearly in the decision as to why you must challenge a heritage designation under the Heritage Act. Maybe the decision will be overturned, but the reasoning is not a legal fiction and I’m not sure why you think he’d have that animus.

As for the City’s tactics, due to resource issues, designation (for better or worse) often comes after a planning application is received. In this case, the property had already been listed as part of a Heritage Conservation District in 2016, and the listing has been under appeal by the property owner for several years. As such, that the City was going to fight on heritage issues was no surprise to anybody.
 
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mcornett said:
I

I apologize, that sounded condescending.

I read the entire judgement and basically it boils down to there being two different processes. The proper way to challenge a heritage designation is by making an appeal of the designation or the refusal of a demolition permit under the Heritage Act. It entails an entirely different process / legal test for heritage protection than the Planning Act, so it can’t just be skipped by the OLT. Likely for tactical reasons, the developer chose not to go this route, which may end up being a fatal choice. TBD. Also, the OLT was criticized for essentially disregarding Council’s decision to designate.

Justice Perell has been a judge for a long time. He’s been wrong before, like all judges, but he explains himself very clearly in the decision as to why you must challenge a heritage designation under the Heritage Act. Maybe the decision will be overturned, but the reasoning is not a legal fiction and I’m not sure why you think he’d have that animus.

As for the City’s tactics, due to resource issues, designation (for better or worse) often comes after a planning application is received. In this case, the property had already been listed as part of a Heritage Conservation District in 2016, and the listing has been under appeal by the property owner for several years. As such, that the City was going to fight on heritage issues was no surprise to anybody.
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I beg to differ. The City’s Notice to Designate didn’t come when the the rezoning application was filed (ie. when under-resourced City staff finally turned their minds to the site). It’s fairly clear this was driven by their litigation positions. The owners filed their Heritage Impact Statement as part of their re-zoning package in August 2017. The City didn’t get around to serving their Notice to Designate until December 2019 at the very late stages of the LPAT appeal (just three weeks before the hearing was going to commence!!)

It’s true that the tests under the Planning Act and Heritage Act are different, but elements of the two are not dissimilar and the LPAT’s holding that the properties are devoid of heritage value would have disposed of the issue whether either test was applied.

This is what I meant by “legal fiction”. Not an insidious motive held by a judge, but a legal result that doesn’t connect up to the substantive dispute.

In any event, the whole analysis falls apart if the Heritage Act isn’t given “paramountcy” over the Planning Act. I didn’t see authority for that proposition before this decision. And if one thing can be said for Justice Perrel, it’s that he’s studious. If there was prior authority, he certainly would have cited it (and he spends quite a bit of legwork in his reasons distinguishing the My Rosedale case which seems to imply the opposite).

It’s fine it you agree with his reasons, but the result certainly wasn’t preordained here.

My view - there’s clearly something wrong when this many years and court attendances into the dispute and there’s still never been an adjudication on its merits.
 
I
bilked said:
I beg to differ. The City’s Notice to Designate didn’t come when the the rezoning application was filed (ie. when under-resourced City staff finally turned their minds to the site). It’s fairly clear this was driven by their litigation positions. The owners filed their Heritage Impact Statement as part of their re-zoning package in August 2017. The City didn’t get around to serving their Notice to Designate until December 2019 at the very late stages of the LPAT appeal (just three weeks before the hearing was going to commence!!)

It’s true that the tests under the Planning Act and Heritage Act are different, but elements of the two are not dissimilar and the LPAT’s holding that the properties are devoid of heritage value would have disposed of the issue whether either test was applied.

This is what I meant by “legal fiction”. Not an insidious motive held by a judge, but a legal result that doesn’t connect up to the substantive dispute.

In any event, the whole analysis falls apart if the Heritage Act isn’t given “paramountcy” over the Planning Act. I didn’t see authority for that proposition before this decision. And if one thing can be said for Justice Perrel, it’s that he’s studious. If there was prior authority, he certainly would have cited it (and he spends quite a bit of legwork in his reasons distinguishing the My Rosedale case which seems to imply the opposite).

It’s fine it you agree with his reasons, but the result certainly wasn’t preordained here.

My view - there’s clearly something wrong when this many years and court attendances into the dispute and there’s still never been an adjudication on its merits.
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bilked said:
I beg to differ. The City’s Notice to Designate didn’t come when the the rezoning application was filed (ie. when under-resourced City staff finally turned their minds to the site). It’s fairly clear this was driven by their litigation positions. The owners filed their Heritage Impact Statement as part of their re-zoning package in August 2017. The City didn’t get around to serving their Notice to Designate until December 2019 at the very late stages of the LPAT appeal (just three weeks before the hearing was going to commence!!)

It’s true that the tests under the Planning Act and Heritage Act are different, but elements of the two are not dissimilar and the LPAT’s holding that the properties are devoid of heritage value would have disposed of the issue whether either test was applied.

This is what I meant by “legal fiction”. Not an insidious motive held by a judge, but a legal result that doesn’t connect up to the substantive dispute.

In any event, the whole analysis falls apart if the Heritage Act isn’t given “paramountcy” over the Planning Act. I didn’t see authority for that proposition before this decision. And if one thing can be said for Justice Perrel, it’s that he’s studious. If there was prior authority, he certainly would have cited it (and he spends quite a bit of legwork in his reasons distinguishing the My Rosedale case which seems to imply the opposite).

It’s fine it you agree with his reasons, but the result certainly wasn’t preordained here.

My view - there’s clearly something wrong when this many years and court attendances into the dispute and there’s still never been an adjudication on its merits.
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I have literally no position on the decision, I’m simply commenting that there is a well-reasoned logic to the judge’s reasons - they are not out of thin air or a fiction. If you read the statues appended to the reasons, it is fairly clear to me that there is a difference between the legal tests. In any event, many cases turn on procedural or jurisdictional issues that have nothing to do with the substance of the matter. That’s how many laws work. I guess we’ll find out if the decision is appealed, but all three Divisional Court judges on the panel agreed with Perell. No dissent. It wasn’t him alone.
 
bilked said:
I beg to differ. The City’s Notice to Designate didn’t come when the the rezoning application was filed (ie. when under-resourced City staff finally turned their minds to the site). It’s fairly clear this was driven by their litigation positions. The owners filed their Heritage Impact Statement as part of their re-zoning package in August 2017. The City didn’t get around to serving their Notice to Designate until December 2019 at the very late stages of the LPAT appeal (just three weeks before the hearing was going to commence!!)

It’s true that the tests under the Planning Act and Heritage Act are different, but elements of the two are not dissimilar and the LPAT’s holding that the properties are devoid of heritage value would have disposed of the issue whether either test was applied.

This is what I meant by “legal fiction”. Not an insidious motive held by a judge, but a legal result that doesn’t connect up to the substantive dispute.

In any event, the whole analysis falls apart if the Heritage Act isn’t given “paramountcy” over the Planning Act. I didn’t see authority for that proposition before this decision. And if one thing can be said for Justice Perrel, it’s that he’s studious. If there was prior authority, he certainly would have cited it (and he spends quite a bit of legwork in his reasons distinguishing the My Rosedale case which seems to imply the opposite).

It’s fine it you agree with his reasons, but the result certainly wasn’t preordained here.

My view - there’s clearly something wrong when this many years and court attendances into the dispute and there’s still never been an adjudication on its merits.
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Good points about the timing of the designation. Wasn't there already an approved building for the site in which the existing buildings would have been demolished? This case was about height and extra floors, so one wonders if the existing envelope for an office building had been utilized for the hotel, without asking for extra floors, would the heritage designation even occurred.
 
innsertnamehere said:

Ontario Superior Court overturns the OLT's ruling here, stating that it exceeded its jurisdiction under the Planning Act in its consideration and application of the Ontario Heritage Act here.

This is an Extremely unusual ruling.
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This is getting so complicated. Can some of the lawyers here explain to the rest of us, who are not lawyers, what this means for the future of the development? For example, if they keep the facade of the heritage buildings, can they still build the 14 storey building? simple language would be appreciated :)
 
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