Op-ed: Kristyn Wong-Tam on the high cost of heritage preservation

Public interest lawsuits play an important role in preserving our natural heritage, but it is citizens who end up footing the legal bills


Matthew Cornett

Demolition crew arrived on site on January 14 and began tearing down the buildings on the following Monday.

As bulldozers and backhoes scraped away a part of Ontario’s heritage in the West Don Lands in January, a judge stepped in to say “not so fast.”

The ruling temporarily halted Infrastructure Ontario’s demolition of the historic Dominion Foundry buildings on Eastern, noting that the province was acting “in contravention of the Heritage Act” when it sold the property and in breach of an agreement with the City of Toronto. 

The court action was filed by local residents, with legal costs funded by private donations. City Council was powerless to do anything with its regularly scheduled monthly meeting still two weeks away.

When an agreement was reached between the province and the city last month, the City touted its success on its website. But it’s local residents who I was working with, in particular, the St. Lawrence Neighbourhood Association, who are the real heroes. We should be thanking them for initiating the legal challenge and helping the City’s lawyers and staff push the case to its positive conclusion. But their reward is tens of thousands of dollars in punishing legal fees.

Public interest lawsuits play an important role in our democracy, as they allow citizens to participate in the protection of the public good. Win or lose, these cases focus attention on serious issues and force a public debate and in some cases new legislation. 

As a result of the Foundry lawsuit, the province has ordered a Cultural Heritage Evaluation Report and Heritage Impact Assessment to go with its new vision for the redevelopment of the Dominion Foundry properties. The province has committed to conserving its cultural heritage and also to providing affordable housing.

But the Foundry lawsuit is just one of many being fought by the Ontario government. The results have been a mixed bag but there has been one constant – the public is always stuck footing the legal bills despite obvious government wrongdoing or inaction.

For example, Friends of Toronto Public Cemeteries has raised important questions about another valuable public asset, the Mount Pleasant Group of Cemeteries (MPGC).

Created as a trust for the public good by the provincial legislature in 1826, MPGC had grown to 10 cemeteries around the GTA with land assets valued at more than $3 billion. Friends want to protect the public trust from private takeover by MPGC’s board. But MPGC claims it’s a “commercial privately owned cemetery”.

The former provincial Liberal government told Friends to go to court to get an interpretation of the old statutes before it would act to protect its own asset. Thankfully, the Ontario Public Guardian and Trustee (PGT) agreed to support Friends in the Ontario Superior Court to ask if the public trust still existed, or if it had indeed been somehow privatized. 

In 2018, the Superior Court agreed with Friends that MPGC was still a statutory trust, created and paid for by the people of Ontario, and that the ruling had successfully vindicated “an important public interest”.

But the board of MPGC appealed parts of the decision, and the Court of Appeal overturned those parts but still agreed that MPGC is a statutory trust. However, court costs alone were an eye-watering $350,000 for Friends.  Michael Bryant, executive director and general counsel for the Canadian Civil Liberties Association was alarmed the decision “could be a chilling precedent for public interest litigation.”  

Despite the court ruling, MPGC’s signage still reads “private property” and their bylaws still say they can dissolve the government’s trust and, after allocating the cemeteries and their maintenance funds, can distribute the substantial “unrestricted cash” reserves of over $310 million to themselves.  

MPGC continues to thumb its nose at both the court order and the government. Where they moved, albeit after the fact, to protect the Dominion Foundry, the Ontario government has yet to intervene on the MPGC case.

MPGC is more than a group of cemeteries and more than a series of parks. It is a historical Crown jewel that cannot be replaced. 

But like the Foundry “win”, it has been public-minded citizens who did the heavy lifting. Our government must now ensure that the protections we fought for in court for Ontarians are not lost, and take this to the finish line.

A sign on the Foundry buildings reads We heart our Foundry
Samuel Engelking

Kristyn Wong-Tam is a Toronto councillor for Ward 13 Toronto Centre. She is also a supporter of Friends of Toronto Public Cemeteries.

@nowtoronto

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