Ontario Bill 108 introduces Changes to the Ontario Heritage Act – May 13, 2019 Built Heritage newsletter

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Hasty, Sudden, and Sweeping Changes to the Ontario Heritage Act introduced in Bill 108

Catherine Nasmith, Past President ACO

Rumours of impending changes to the Ontario Heritage Act have been circulating for months. They landed with a thud this week in Bill 108, which changes a number of laws, nominally in aid of eliminating red tape for housing development. There was no meaningful consultation with municipalities, or those involved in the heritage sector prior to drafting the legislation. The governments goal is to pass the changes by June 7, with regulations and definitions to follow. It is hard to ascertain the full impact of the legislation without these accompanying materials.

Architectural Conservancy Ontarios (ACO) Policy Committee is drafting a response which should be available in the week to come.  A very useful blacklined document comparing the existing legislation with the proposed has been prepared by Osler Hoskin and is available to download here.

First the good news. Binding designation, introduced in 2005, remains in place. However, a number of new appeals have been introduced, along with additional timelines and substance requirements which will give more opportunities to frustrate municipal intent on both listings and designations. Municipalities ability to designate will be limited somewhat by it not being permitted after 90 days from a prescribed event, a term which has yet to be defined. ACO presumes that this is to prevent emergency or last-minute designations, a process no-one likes, but which have been hard to avoid in communities with heavy development pressures and insufficient resources dedicated to heritage identification and protection.

The most worrying aspect of the legislation is the end of municipal councils having the final say on Part IV designations. While there has always been an appeal available to owners, it was to the Conservation Review Board (CRB) who in turn advised Council on the matter. Once that advice was rendered, councils decided. Under these changes, designations can be appealed to LPAT, who are empowered to overrule the municipal decision. This is a major departure from the principal underlying the current OHA as legislation enabling communities to identify and protect what is valued by community.

Bringing consistency to appeals under the Ontario Heritage Act may be a laudable goal–but introducing additional appeals to a body (LPAT) which has no heritage expertise can only result in a bonanza for lawyers and frustration all round. The CRB remains on paper, but with only two very limited roles: providing advice to the Minister on ministerial designation, and in disputes about archaeological licenses. Elimination of the CRB in the near future seems highly likely.

These are the major thrusts, but there are many other small changes. The Ministry of Culture, Tourism and Sport are conducting stakeholder sessions over the next week. They also indicated they will continue to work with the heritage community in developing the principles, prescribed events, and other regulations after the legislation is passed. The haste with which these changes are moving forward make them feel more like an ambush than a reasoned approach to streamlining.