Thursday, October 22, 2015

The OHA: what the courts have to say (part one) ... or, when moveables become immoveables

Our topic for today — please don’t be scared away — 
Is what the courts have had to say…
about the O-H-A.

AKA jurisprudence: how the courts and, from a wider perspective, our regulatory tribunals — the Ontario Municipal Board and the Conservation Review Board — have interpreted the Act and its regulations.

As we saw last time, during debate over Bill 60 ten years ago, a group of church organizations claimed that the legislation — specifically the controls on demolition of designated buildings — was unconstitutional because it violated the right to freedom of religion under the Canadian Charter of Rights and Freedoms.  Although the bill was passed into law unaltered, no challenge of the kind was, thankfully, ever pursued.  Would have made for a fascinating case though.  Imagine the courtroom drama!  And then the excitement of the court’s decision — the Act (demo provisions) upheld… or the Act struck down… or the Act struck down for faith group owners but upheld for everyone else. [Note 1]

Not complaining, but there hasn’t been much courtroom, let alone courtroom drama, associated with the OHA.  For a statute that’s been around for 40 years there are remarkably few court decisions.  Probably this is because the legislation was, until Bill 60 came along, relatively weak, so property owners (the most likely challengers) didn’t see much at stake.  Also that the two tribunals involved have, as intended, borne the brunt of what disputes there have been — and have handled these competently, with few errors in law that would open the door to review by the courts.

But there have been some interesting cases, and I’m not counting those that turned on procedural points like whether notice of designation was properly given or not.  Let’s look at one, just decided this month: Foley v. Corp. of the Town of St. Marys. [Note 2]

Andrews Jeweller building during shooting of Murdoch Mysteries episode, 2014

The case concerns the iconic Andrews Jeweller building in downtown St. Marys.  The 1884 building is in the middle of a heritage conservation district but is also individually designated — outside and in.  And it’s the “in” that led to the dispute here.

The designation by-law, from 2008, covers the building exterior and “all of the original interior features” from 1884.  While these are not spelled out, the by-law has a schedule attached with photos of the interior, and the photos, not unlike the historical one reproduced here (although minus the jewellery!), show a wall clock, walnut cabinets and counters, and mirrors.

Interior of Andrews Jewellery store, courtesy St. Marys Museum

The owners argued that these features were chattels or personal property, not real property, and that their designation was invalid, since only “real property” including “all buildings and structures thereon” can be designated under the Act.

The back story here is that the out-of-town owners have been trying to sell the building for years and are convinced that the restrictions on the truly gorgeous interior are scaring off buyers.  [Note 3]  After attempting in vain to get the Town to remove the designation of the interior, they sought redress from a higher power.

So the court was faced with the question — were the clock, cabinets, etc. personal property (not designatable), or were they fixtures, part of the real property (designatable)?  In a different lexicon, moveables or immoveables?

From the leading cases on the distinction between chattels and fixtures, the court identified two principles as germane to the case:
  1. an object that is only attached to a building by its own weight is not part of the real property unless there is evidence to show it was intended to be part of the building
  2. an object is considered a chattel unless there is evidence it is affixed with the intention of improving the property or premises as a whole
Now the wall clock in the Andrews Jeweller building could simply be lifted off its hook, and this had been done for cleaning purposes.  The counters were just sitting on the floor.  Removal of the cabinets and mirrors would be more difficult but could be done without damage.

Nevertheless… the court concluded they were all fixtures:

The evidence establishes that they were designed and installed for the express purpose of attracting customers and selling jewellery through an enhancement of the realty.  The wall clock, cabinets and counters were purposefully designed and built into the store for a specific purpose.  They were used for that purpose and never moved again in over 100 years.

And so the owners’ suit miscarried.

A sensible result.  It seems the test is not (the simpler) one of how easy a heritage element can be removed, but (the harder) one of intention and purpose of its installation.

I guess you could say that when it comes to designating interior features, you don't necessarily have to nail it to nail it.  (Sorry.)

I’ll leave you to ponder the implications for other old stores and their counters and shelves, for old churches and their alters and pews, for old town halls with their wallclocks and furniture… et cetera.  Does it matter if these things weren’t "original" but added later?

Andrews Jewellery building during shooting of Murdoch Mysteries, 2014

Note 1: In drafting Bill 60 the culture ministry sought a legal opinion on whether proposed tougher demolition controls would hold up and was advised to include “no compensation” provisions (OHA section 68.3); but compliance with the Charter was not considered. 

Note 2: Superior Court of Justice File No. — 15-2635; dated October 9, 2015.
The lawyer successfully arguing the Town's case was Eileen P.K. Costello, of the Toronto firm of Aird & Berlin. Note: The owners appealed the decision but the Court of Appeal dismissed the appeal on a technicality in June 2016.

Note 3: The designation certainly didn't scare off CBC's Murdoch Mysteries when it came to town a year ago to shoot two episodes of their series, one involving a gang of female jewel thieves. The Andrews building, both inside and out, played... a jewellery store.

Friday, October 9, 2015

The churches versus Bill 60

Okay, deep breath…

In this country the separation of church and state is a given — even if the two occasionally find themselves at odds.  Unlike earlier times when the “established church” exerted a domineering influence on government policy, today it is usually the government that is accused of trespassing on matters of faith and trampling religious freedoms.  The current controversy in Ontario over a new sex-ed curriculum in schools is one example.  The wearing of the niqab at citizenship ceremonies and in the public service, now (shamefully) a hot-button federal election issue, is another.

Heritage policy in this province has seen its own dramatic church/state divide.  In the first post of this blog I tell the story, from an inside-government perspective, of the long years of effort spanning four governments to overhaul the Ontario Heritage Act.  Finally, legislation, known as Bill 60, was introduced in the Legislature in the spring of 2004.  I blamed the delay in its passage on trouble with church organizations:

A year later, delayed by a fierce eleventh hour assault by certain faith groups intent on diluting the legislation, … the new Act was passed and given Royal Assent on April 28, 2005.

What happened there?  Why the “assault”, how was it turned back, and what was the fallout?

To go back a ways…  It is elementary that the making of good public policy requires consultation with stakeholders — with those who have an interest in or may be affected by a new policy.  The enormous and exhaustive public consultation process on heritage policy and legislation undertaken in the late 1980s included church groups (frankly it would be hard to think of a sector it didn’t reach out to).  From what I recall, faith organizations did not have much to say.  Nor when the various reports and recommendations for heritage policy and legislation were released in the early 1990s.

But later, for a decade, nothing much happened, at least that was visible from outside the culture ministry.  Then, suddenly — from the standpoint of someone not paying much heed — there was a bill before the House!  And on the first reading of a bill it becomes public, and starts to get attention.  And (one hopes, since this is the purpose of our legislative process) real scrutiny.

Of course, when the governments of the day (early 2000s) — Conservative first, then Liberal — at last got engaged in reviving reform of the Ontario Heritage Act, they wanted assurance stakeholders were in support.  In view of the long history, direction was given to consult expeditiously with three key interest groups: municipalities, heritage organizations and the development industry.  The culture ministry brought these sectors, as well as other provincial ministries, on side.  Legislation was drafted and by April 2004 Bill 60 was launched.  Second Reading took place in September and the finish line was in sight.  

As best I can tell, it was about that time the bill caught the eye of a law firm representing the Roman Catholic Archdiocese of Toronto.  Not long after all hell broke loose.

Led by the Archdiocese, a coalition of Christian churches objected strenuously to the bill, especially the strong demolition control provisions, which they saw as unfairly limiting their ability to alter/demolish/sell redundant church property.  They said — with some justification — they had not been consulted.  They even claimed the legislation would infringe their Charter rights, backed up with a legal opinion that it was likely unconstitutional!  Yikes.

At the committee hearings on the bill a formidable delegation of church representatives inveighed against it.  The bill cleared committee, but…  the Archbishop of Toronto had called the Premier’s Office.  At the ministry we knew we had a BIG problem.

To address the concerns, the government agreed to create a working group of church organization and ministry/Ontario Heritage Trust representatives.  Pending recommendations from this group the bill would be stalled.  At the beginning of 2005 the group worked feverishly and, on a number of lesser issues, such as the proposal for provincial criteria for heritage designation, made progress (mainly by bringing the faith groups to a better understanding of the bill’s provisions).  But on the main bone of contention — permanent demolition controls, the lynchpin of the whole reform exercise — there was an impasse.

The faith groups would go along with strengthened controls on demolition but insisted that their exercise by municipalities be tempered by a list of “factors”, the key one being the financial circumstances of the property owner.  They preferred this be done via a regulation that mandated consideration of the factors, and that the bill be amended to provide for the development of such a regulation.  The ministry/OHT reps, on the other hand, were prepared to go only so far as to commit to a wider public consultation on the question after the bill was passed.

What would the government do?  Weeks passed, then months.  It seemed like the whole thing was about to go down the proverbial drain.  Heritage groups and some municipalities, hearing whispers of behind-the-scenes drama, called for the bill to move forward.  Then, in April 2005, the word came down — Bill 60 would be called for Third (and final) Reading.

The end?  No, only the beginning of a very long end to the standoff.  Later that year the ministry carried through on its agreement to consult on factors to be applied in decisions by municipal councils (and, on appeal, the Ontario Municipal Board) and the results were predictable — the faith groups wanted them, virtually everyone else didn’t.  A “compromise” proposal to implement the factors through an unprecedented formal ministry guideline instead of a regulation was (thankfully) vetoed by Minister Madeleine Meilleur.

But the government had to do something.  We looked at these initiatives last time.  First, in 2006 the minister announced $1 million in funding to the Ontario Heritage Trust for the development of a comprehensive inventory of Ontario’s places of worship.  More recently — after years of continued badgering — the culture ministry created a working committee of faith groups, heritage professionals and municipal staff to grabble with the outstanding issues, work that resulted in a Heritage Tool Kit guide on conserving heritage places of worship.

And perhaps also since time has gone by and the results of Bill 60 for religious properties have not been as dire as some faith groups feared, this particular church/state policy squabble seems at last to have died away.