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Ontario Heritage Act: repeal of a designating by-law pursuant to s. 34.3(1)

In The Windsor Arms Hotel Corporation v. Toronto (City), 2013 ONSC 1174 (CanLII), the Superior Court of Justice considered an application by The Windsor Arms Hotel Corporation to quash a repealing by-law enacted by the City of Toronto pursuant to section 34.3(1) of the Ontario Heritage Act.  The City of Toronto passed the by-law repealing the designation by-law almost sixteen years after approving the demolition permit for the former hotel building.   

Among other things, the applicant took the position that the respondent was required to give notice of its intention to repeal the designation by-law.  This argument was premised on section 31 of the Ontario Heritage Act.

In the Court’s decision, Justice Macdonald considered the grammatical and ordinary meaning of the language of sections 31 and 34.3 in the context of the scheme and objects of the Act, and found that a municipality is not required to give prior notice where it is required by s. 34.3(1) to repeal a designation by-law. On this issue, Justice Macdonald concluded that:

Prior notice of the intention to repeal a designation by-law is not required by the Act where those affected by the repeal have no basis for opposing that outcome, as is the case where the legislature has already determined and directed that the designation by-law shall be repealed.

The applicant also alleged that the City of Toronto acted in bad faith in repealing the designation by-law retroactively.  In addressing this issue, Justice Macdonald commented as follows:

Good faith remains a central foundation for the validity of a municipal by-law enacted in conformity with the municipality’s powers. … The onus of proving the absence of good faith in the passage of a by-law rests on the party which asserts it.  In my opinion, the applicant has failed to establish that the respondent did not act in good faith in repealing the designation by-law in issue.  The respondent did not exercise its powers unfairly or to serve private interests at the expense of the public interest. While there was unusual haste in passing the repealing by-law if that is measured from when the respondent became aware of its lengthy oversight, that haste is not an indicator of bad faith, in my opinion.  The rapidity with which the respondent ultimately moved was, like the retroactive nature of the repealing by-law, its attempt to comply with what the Ontario Heritage Act required.  Viewed in that light, the rapidity with which it ultimately moved is evidence of its good faith.