Commentary on the OMB and Marchese Bill
Michael B. Vaughan

Rosario Marchese as Minister [of Culture during the Rae government], was the strongest Ministerial supporter of heritage preservation that I remember. Our thanks must go out to him for this initiative.

Rather than bemoan what has happened, [OMB Decision to Permit Highrise Development at 21 Avenue Road] it is important to understand why it has happened.

The Province generally defers heritage decisions to municipalities. That is wrong, at least in my view, but it is politically convenient. Our municipality [Toronto] has no meaningful or effective official plan policies addressing heritage preservation, let alone views, so the City planners have nothing to hang their hats on in making recommendations.

The heritage preservation policies in the Provincial Policy Statement are so brief and skeletal in comparison with the other policies that they convey a clear message that heritage is a very low and subordinate Provincial policy.

The OMB is bound to make its decisions based on the applicable, approved, written-down, government policies. It does not and must not make up its own policies. If it were to do so, can you imagine the uproar?

In order to get the decision you want from any approval system, it is essential to know how that system works. The OMB is the tribunal that we have at the moment and the one we will have for the foreseeable future. Not only is it the only tribunal we have but, in my view, it is the right tribunal because it is skilled in weighing competing points of view in the public interest, including planning and so on. The Kelvingrove [rejection of a developer’s plan to tear down the heritage Talbot apartment complex on Bayview Ave. in Toronto] decision illustrates this. Of course the OMB is an "adjudicator" and an "arbiter" but it does not simply adjudicate or arbitrate disputes between parties. It has an overriding obligation to make decisions in the public interest and it tries to do so.

The way the Board determines the public interest; the way it must, in our democratic system determine the public interest, is to have close regard to the policy documents setting out the public interests that are articulated and specified in the written policies of the elected governments. That includes the Province of Ontario and the City of Toronto. Our issue is not with the OMB, but rather with the heritage policies, or lack thereof, that our set out in the City of Toronto official plan, and to some extent in the Provincial Policy Statement.

The City's official plan is around one inch thick. The heritage "policies" in it are less than two pages long. They deal *only *with the City's internal processes of listing and designating properties and heritage conservation districts and dealing with City owned buildings. There is no policy whatsoever that heritage buildings or heritage conservation districts, views etc. should be preserved. The "policies" are just an internal procedural guide, not a land use or preservation policy.

It is clear to anyone reading the document, including the OMB, that it is not the policy of the City that heritage properties themselves should be protected and preserved. The City's policy is simply that the City should list and designate buildings so that the Ontario Heritage Act can apply. There is not and never will be enough staff to do that. The entire listing and designation process set out in the Ontario Heritage Act assumes that, at any given point, not all heritage properties will be designated. We know that to be true.

In these circumstances the City's official plan heritage policies are astonishing and telling in their silence.

In our system where democratically elected governments determine policies that the Board applies, the outcome of many heritage battles is therefore pretty well determined in advance.

This City has a long history of activist citizens groups which over time have dramatically altered the physical form of the City that was desired by the then elected officials of the City. Stopping the Spadina Expressway and the Crosstown Expressway, stopping the St. Jamestownization of King-Spadina are only a few of many many examples.

The time has come for the heritage community to get busy doing what matters and that is crafting or commissioning the crafting of the heritage protection policies that we so sorely need.

What is needed is for someone to draft up a set of heritage policies for the official plan that the City could adopt. Then we could try to get the City to adopt those policies, failing which we could make a formal application for an official plan amendment and appeal it if necessary.

The second thing that would be very helpful in this case is for the Speaker to commission heritage policies that would protect Queen's Park. These could be Provincial policies and/or could be put in to the City's official plan.

The third thing we could do is appeal the height limits in the City's new zoning By-law around Queen's Park including the subject site. To do this someone needs to make written or oral submissions to the June 8th and 9th Council meeting which would buy time and give us or the Speaker another kick at the can before the OMB by which time appropriate policies might be in place.

It is unlikely that we can change how the system works. What is much, much easier though, is to feed it the policies that will generate heritage outcomes that are in the public interest. This is the course of action that is needed.