Many of us thought that when town council passed a bylaw in March of this year to expand the Old Town heritage district, we could breathe a little easier knowing that there were finally, at long last, some level of protection in place for this unique historic community within Niagara-on-the-Lake.

I wish that was in fact the case but, unfortunately, ’tis not true.

Six property owners — incidentally, not necessarily those who actually reside on the properties — filed appeals to the Ontario Land Tribunal pursuant to the provisions of the Ontario Heritage Act thereby stalling and potentially killing the expansion of the heritage district.

All the monies paid in consultancy and town staff costs plus the hours or days invested by volunteers and town council, may all be flushed down the toilet dependant on the decisions rendered by the tribunal on each of the individual appeals.

So, despite the overwhelming majority of property owners within the boundaries of the proposed heritage district being supportive or accepting of the change, objectors representing about one per cent could derail the will of the majority.

Let’s step back for a moment to understand the legislation.

There are two specific sections of the Ontario Heritage Act which provide for appeals pursuant to the process and creation of a heritage conservation district.

In the case of process (relative to properties within the defined boundaries of the designation study area), section 40.1(4) of the legislation provides that “any person” may appeal to the tribunal within 30 days of council endorsement of defining the boundaries of a designation study.

Then, the legislation speaks to appeals associated with the actual designation of a heritage conservation district in section 41(4) wherein it states that within 30 days of the publication in a local newspaper notice of the passage of the designation bylaw, “any person who objects to the by-law may appeal to the Tribunal by giving the Tribunal and the clerk of the municipality” provided that they specify their objection and the reasons supporting said objection together with payment of the applicable fee.

Now, of the appeals filed by the six property owners, all of them appealed under section 40.1(4) contesting the boundaries of the designation study area and two of these owners also appealed under section 41(4) objecting to the actual designation of the proposed heritage conservation district.

At the time this column was written, all of the appeals with the exception of one, are shown as “closed” — meaning the tribunal has issued a final order or, the appeal was withdrawn by the appellant or, the case was resolved through another administrative action — on the Ontario Land Tribunal’s case status webpage (jus-olt-prod.powerappsportals.com/en/e-status), however no decisions, withdrawals or alternative resolutions of the appeals have been published.

That leaves the one 41(4) appeal still outstanding since it is shown as being in the first phase of the tribunal appeal process — “pre-merit hearing” as per the webpage or officially, a “case management conference,” which, in real terms, is a mechanism to sort the wheat from the chaff, first focusing on defining the actual issues and facts underwriting the appeal, then attempting to (dependant on the merits of the appeal) push resolution to mediation or other dispute settlement processes.

In my world, this is a logical and reasonable choke point to sort, divert or dismiss what may be described as weak or nuisance overtures — which could waste tribunal time and taxpayer dollars — from 50,000-foot substantiated appeals under the law.

That said, and given that an appeal to the tribunal passes this minimal threshold, it becomes a legal battle dependent upon the pocketbooks of the appellant and the municipality to fund and defend their respective positions.

Given the current council’s reticence to properly fund important legal contests at the tribunal based on their apparent belief that it is a waste of money since the municipality always loses (despite the Randwood victory in 2024), one can only hope that in the case of appeals launched against the new heritage district they have ponied up the money for proper and effective legal representation.

Otherwise, one can only wonder about their actual commitment to fulfil the promise they made to protect our heritage through the expansion of the district — something at least one councillor running for re-election have inferred is a “done deal” while taking a bow.

As a general observation, council can attempt to shift accountability elsewhere (such as in the case of making Transport Canada rule on the proposed heights of buildings in Glendale) but, at the beginning and end of the day, the responsibility — together with the blame or accolades — remains solely in the hands of our local elected councillors.  

The future boundaries are yet to be determined and, to use Ralph Carpenter’s famous 1976 quote, “The opera ain’t over until the fat lady sings.”

Closing off this week’s column, it was pointed out by one of our readers that, included within the Helping Homebuyers, Protecting Tenants Act of 2023, an amendment was made to the Ontario Planning Act which allows “any person or public body” to appeal a municipal interim control bylaw to the Ontario Land Tribunal within 50 days of its passage, contrary to the previous appeal limitation to only the Minister of Municipal Affairs as cited in the Arch-i-text column from last week (“Arch-i-text: Is keeping town facilities off-limits during elections right?”)

Oddly though, there is no definition of what or whom a “person” is included in the Planning Act leaving fodder for legal fees to sort it out.

Brian Marshall is a NOTL realtor, author and expert consultant on design, restoration and heritage.