COURT OF APPEAL FOR ONTARIO

CITATION: Oakville (Town) v. Clublink Corporation ULC, 2019
    ONCA 826

DATE: 20191023

DOCKET: C66187

Doherty, Nordheimer and Harvison Young JJ.A.

BETWEEN

The Corporation of the Town of Oakville

Applicant/Respondent by Counter-Application
(Appellant)

and

Clublink Corporation ULC
    and Clublink Holdings Limited

Respondents/Applicants by
    Counter-Application
(Respondents)

J. Thomas Curry, Derek Knoke, Jessica Starck and Rodney
    Northey, for the appellant

Earl A. Cherniak, Q.C., Cynthia Kuehl and Mark Flowers,
    for the respondent

Heard: May 21, 2019

On appeal from the order of Justice Edward M. Morgan of
    the Superior Court of Justice, dated October 25, 2018, with reasons reported at
    2018 ONSC 6386, 84 M.P.L.R. (5th) 90.

Harvison Young J.A.:

A.

Overview

[1]

The central issue in this appeal is, at first glance, a narrow one. It
    is whether the respondent Clublinks application to demolish the Glen Abbey
    golf course is governed by the procedure and appeals as set out in s. 33 or s.
    34 of the
Ontario Heritage Act
, R.S.O. 1990, c. O.18 (the
OHA
).
    As my colleague has noted, the interpretation of the word structure in s. 34
    is at the centre of this issue. In my view, however, the issue cannot be
    resolved by an interpretative approach focussing solely on the word structure,
    and ss. 33 and 34, without a consideration of the entire context and object of
    the Act, and the intention of the Legislature: see
Rizzo & Rizzo Shoes
    Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21. In the case of these
    provisions of the
OHA
, this also requires a consideration of its
    legislative history.

[2]

In applying this approach to the interpretation of ss. 33 and 34, I conclude
    that Clublink properly framed its application under s. 34 and that the appeal
    must therefore be dismissed.
[1]
In essence, I conclude that a purposive and contextual approach to ss. 33 and
    34  and, in particular, an approach that takes into account the legislative
    history of the two provisions  indicates that Glen Abbey is properly construed
    as a structure for the purpose of s. 34 of the
OHA
.

[3]

My colleague reaches a different conclusion. He concludes that a golf
    course cannot be a structure within the meaning of s. 34 of the
OHA,
relying
    primarily on the ordinary meaning of that term. In my respectful view, this
    approach gives too much weight to the ordinary meaning of the term
    structure  itself a contested concept  in a manner inconsistent with the
    modern approach to statutory interpretation. It fails to give effect not only
    to the broader context, purpose and legislative history of the
OHA
,
    but also to the broad meaning ascribed to the word structure elsewhere in the
OHA
.

[4]

I also respectfully disagree with my colleague that the difference in
    the appeal routes set out in ss. 33 and 34 does not assist in resolving the
    issue presented by this appeal. As I will discuss further, the legislative
    history of the two provisions reveals that the addition of an appeal route to
    the Ontario Municipal Board (now the Local Planning Appeal Tribunal)
    independent of the municipal council, in respect of applications under s. 34,
    was a deliberate legislative decision. The introduction of this right of appeal
    was intended to act as a counterbalance to the municipalitys (then newly
    conferred) right to preclude an owner from demolishing a building or structure,
    in a manner that would wholly remove the cultural heritage attributes
    associated with the property. Far from being irrelevant to the issue presented
    by this case, the difference in appeal routes under ss. 33 and 34 is an
    important part of the scheme of the
OHA.
It is instructive of the
    types of applications the Legislature anticipated would be captured by each
    provision.

[5]

In the course of these reasons, I will begin by outlining ss. 33 and 34.
    I will then summarize the application judges reasons and the positions of the
    parties on this appeal. My analysis of the interpretation of ss. 33 and 34 will
    begin with a consideration of the purpose, object and legislative history of
    the
OHA
, and will address the issue of the proper interpretation of
    these provisions within that context.

B.

Background

The Factual Background

[6]

Glen Abbey is located at property municipally known as 1313 and 1333
    Dorval Drive in Oakville, Ontario. Glen Abbey is one of Canada's most famous
    golf courses. It was the first golf course solely designed by Jack Nicklaus,
    one of the greatest professional golfers of all-time. The design reflects a
    particular emphasis on the spectator experience. In addition to design value,
    the Town regards Glen Abbey as having significant historical value. Glen Abbey
    has hosted the Canadian Open golf tournament 30 times  three times more than
    any other course in Canada  and is directly associated with memorable events
    in Canadian golf history. The value of Glen Abbey to the Town is well described
    in the by-law that designated Glen Abbey to be of cultural heritage value. It
    says, in part:

The Property is a landmark within
    the Town of Oakville. The quality of the golf course, and its connection to the
    Canadian Open, have been important in defining the character of this community
    and giving it a distinct place within the larger Toronto metropolitan area, and
    beyond. The course is also a central defining feature of its immediate
    neighbourhoods, which were created in response to the construction of the
    course.

[7]

Since 1977, the Towns Official Plan has identified Glen Abbey as an important
    feature of the Town and evidenced an intention that Glen Abbey permanently
    remain a golf course. This intention has remained consistent for 40 years in
    the Towns subsequent Official Plans and zoning.

[8]

In February 1999, Clublink purchased Glen Abbey. The property is
    approximately 94 hectares (232 acres), including 32 hectares (78 acres) of
    valleylands located in the Sixteen Mile Creek Valley and approximately 62
    hectares (154 acres) of tablelands above the valley. Situated on the property
    is an office building, unaffiliated with the operation of Glen Abbey as a golf
    course, known as the RayDor Estate. That building currently houses the offices
    of Golf Canada.

[9]

In January 2014, the Town adopted a three-stage strategy to conserve
    significant cultural heritage landscapes across the Town. A cultural heritage
    landscape refers to the recognizable imprint of human settlement and
    activities on land over time: Town,
Cultural Heritage Landscapes Strategy
(January 2014), at p. 2. It is not a concept found in the
OHA
, but,
    rather, is derived from the Provincial Planning Policy Statement, municipal
    by-laws and other planning instruments. As part of the Towns conservation
    strategy, heritage landscape experts evaluated over 60 potential landscapes
    and, as part of their evaluations, they visited Glen Abbey in September 2015.

[10]

Approximately
    a month after that visit, on October 22, 2015, Clublink advised the Town that
    they intended to redevelop Glen Abbey into a residential and mixed-use
    community. Clublink proposed to build 3,000 to 3,200 residential units and
    140,000 to 170,000 square feet of office and retail space. Glen Abbey would
    cease to exist.

[11]

The
    Town responded to Clublinks redevelopment plan on February 1, 2016 by passing
    an interim control by-law under the
Planning Act
, R.S.O. 1990, c.
    P.13, to temporarily restrict redevelopment of Glen Abbey, pending the
    completion of relevant studies, including the cultural heritage landscape
    evaluation.

[12]

In
    November 2016, Clublink submitted applications to amend the Towns Official
    Plan and zoning by-laws, and sought approval of a plan of subdivision, in
    furtherance of its proposed redevelopment of Glen Abbey. The applications
    proposed the construction of 3,222 residential units and 121,309 square feet of
    office and retail space.

[13]

In
    May 2017, the Town moved to recognize Glen Abbey as a significant cultural
    heritage landscape, and on August 24, 2017, the Town published and served on
    Clublink a notice of intention to designate Glen Abbey and surrounding property
    as a property of cultural heritage value or interest under s. 29 of the
OHA
.
    This notice stated the property's cultural heritage value according to
    provincial criteria and described the heritage attributes that contribute to
    this value.

[14]

Clublink
    had the right, under s. 29(5) of the
OHA
to formally object to the
    proposed designation, but they did not do so.
[2]
Rather, on September 25, 2017, Clublink advised the Town that they intended to
    submit an application under s. 34 of the
OHA
to demolish and/or
    remove Glen Abbey.

[15]

On
    September 27, 2017, the Towns council considered Clublinks redevelopment
    applications. Council refused Clublinks first two applications  namely, for
    amendments to the Towns Official Plan and amendments to the zoning by-laws.
    Council deferred the third application for approval of Clublinks plan of
    subdivision but that application was ultimately rejected on November 6, 2017.

[16]

On
    October 27, 2017, the Town notified Clublink that their s. 34 application was legally
    beyond the scope of a section 34 OHA application but was properly within the
    scope of s. 33 of the
OHA
which permits an owner to apply to alter a
    designated property.

[17]

On
    November 1, 2017, the Town commenced this application for a determination of
    its rights under the
OHA
and for a declaration that s. 34 did not
    apply to Clublinks proposed demolition or removal of Glen Abbey.

[18]

On
    November 21, 2017, Clublink formally submitted its s. 34 application to the
    Town. On November 27, 2017, Clublink commenced its own application in the
    Superior Court for a declaration that they could make an application under s.
    34 of the
OHA
for the demolition and removal of buildings and structures
    on the lands municipally known as 1313 and 1333 Dorval Drive  including but
    not limited to the tees, greens, hazards, fairways and cart paths.

[19]

On
    December 20, 2017, the Towns council officially passed a s. 29 by-law
    designating Glen Abbey and the surrounding property as a property of cultural
    heritage value or interest.

Sections 33 and 34: Why They Matter

[20]

As
    I have already stated, this appeal turns on the interpretation of ss. 33 and 34
    of the
OHA
. The central difference between ss. 33 and 34 lies in the
    procedural rights and appeal routes afforded to an applicant under each section:
    under s. 33, the municipal council retains the final word with respect to the
    application; under s. 34, the Local Planning Appeal Tribunal (LPAT) has the
    final word with respect to the application. This also explains the practical
    reason why the Town takes the position that the application is governed by s.
    33, while Clublink takes the position that the application is governed by s. 34.

[21]

Section
    33(1) reads as follows:
[3]

No owner of property designated
    under section 29 shall alter the property or permit the alteration of the property
    if the alteration is likely to affect the propertys heritage attributes, as
    set out in the description of the propertys heritage attributes that was
    required to be served and registered under subsection 29 (6) or (14), as the
    case may be, unless the owner applies to the council of the municipality in
    which the property is situate and receives consent in writing to the
    alteration.

[22]

Section
    33 requires the property owner to apply to the municipality if an alteration
    is likely to affect the propertys heritage attributes, as reflected in the
    by-law designating the property under s. 29 of the
OHA
. In other
    words, the property owner is required to apply to municipal council if the
    proposed alteration will affect the reason for the propertys designation. To
    this end, alter and alteration are defined broadly in s. 1 of the
OHA
to mean to change in any manner and includes to restore, renovate, repair or
    disturb.

[23]

If
    municipal council refuses an owners application under s. 33, the owner may
    appeal to the Conservation Review Board. The Conservation Review Board is
    directed to hold a hearing and produce a report, in which it is to recommend
    whether the application should or should not be approved. The Conservation
    Review Boards report is not binding on the municipal council:
OHA,
ss.
    33(6)-(13).

[24]

Section
    34(1) provides as follows:

No owner of property designated
    under section 29 shall demolish or remove a building or structure on the
    property or permit the demolition or removal of a building or structure on the
    property unless the owner applies to the council of the municipality in which
    the property is situate and receives consent in writing to the demolition or
    removal.

[25]

Section
    34 requires the property owner to apply to municipal council whenever it seeks
    to demolish or remove any building or structure on a designated property; there
    is no language that ties the requirement for municipal approval to whether the
    demolition will affect the reason for the heritage designation.

[26]

In
    contrast to s. 33, if the municipal council refuses the owners application
    under s. 34, the owner of the property can appeal to the LPAT. The municipal
    council is bound by the LPAT decision:
OHA,
ss. 34.1(1)-(7).

[27]

Significantly,
    if the municipal council approves the application, or is directed by the LPAT
    to approve the application, the municipal council must repeal the by-law
    designating the property as being of cultural heritage value or interest under
    s. 29:
OHA,
s. 34.3. There is no corresponding requirement under s.
    33.

The Application Judges Reasons

[28]

The
    application judge identified the issue raised by the consolidated applications
    as whether Clublink having had its property designated under s. 29 of the
OHA,
can  now apply to the Town under s. 34(1) of the
OHA
for
    permission to demolish the entire Golf Course, or must it proceed under s. 33
    and apply to alter the property?: at para. 2. The application judge noted that
    it was clear that the demolition of the buildings on the designated property fell
    within the scope of s. 34(1). Thus, the real issue was whether the other
    features comprising the golf course were structures within the meaning of s.
    34(1).

[29]

The
    application judge ultimately concluded that Glen Abbey  is both composed of
    structures and overall is a structure for the purpose of s. 34 of the
OHA
,
    such that Clublink had properly framed its application under s. 34: at para.
    45. The application judge reached this conclusion, in large measure, because
    the uncontroverted evidence before him established that Glen Abbey was the
    product of significant construction and engineering. Relying on judicial and
    administrative decisions from other contexts, he concluded that a golf course
    fit within the definition of a structure as being a thing constructed: at
    paras. 38-42.

[30]

Notably,
    the application judge tied the cultural heritage attributes specified in the Towns
    designation by-law to the constructed or engineered features of Glen Abbey,
    when he observed, at para. 44:

It is evident that
    it is the structural aspects of Glen Abbey  the routing, shape and slope of
    the fairways and greens, the elevated mounds and berms for audience viewing,
    the creation of sand traps and other hazards, the underground irrigation and
    drainage engineering, the routing and installation of cart paths, etc.  that
    make it a championship course and, from the Towns point of view, a cultural
    heritage landscape in the first place. It is the architecture of the Golf
    Course, and not just some superficial, non-structural gardening or grooming of
    the landscape, that has made this Golf Course what it is.

C.

Positions of the parties on appeal

[31]

The
    heart of the parties respective positions on this appeal may be briefly
    stated.

[32]

The
    Town argues that the application judge failed to properly apply the principles
    of statutory interpretation in concluding that Glen Abbey was a structure
    within the meaning of s. 34 of the
OHA
. In particular, it argues that
    the application judge failed to have sufficient regard to s. 33 of the
OHA
,
    and thus failed to interpret the term structure in s. 34 in context. It says
    that if the application judge had more closely considered s. 33 of the
OHA
,
    he would have concluded that Clublinks application was properly characterized
    as an application to alter the property designated under s. 29 (within the
    meaning of s. 33), not an application to demolish or remove a building or
    structure on the designated property (within the meaning of s. 34).

[33]

The
    Town also argues that the application judge erred in his textual analysis of s.
    34 by rejecting the ordinary meaning of the term structure as being
    irrelevant to his analysis, and by relying on non-
OHA
jurisprudence to
    conclude that a golf course is a structure. In the end, the Town advances a
    narrow approach to the interpretation of s. 34, focussing on the ordinary
    meaning of the word structure and arguing the term cannot include a golf
    course.

[34]

Clublink,
    on the other hand, argues that the application judge had sufficient regard to
    the scheme of the
OHA
and engaged in a contextual analysis of s. 34.
    To this end, it emphasizes that the ordinary meaning of a particular
    statutory term is only the starting point of the interpretive exercise; it is
    also necessary to consider the broader context in which the statutory language
    is employed. It also emphasizes that the uncontroverted evidence before the
    application judge was that Glen Abbey was heavily engineered and the product
    of significant construction. It argues that it was open to the application
    judge  relying on decisions as to the meaning of the term structure by judges
    and tribunals in other contexts  to conclude that a golf course is a structure
    because it is a thing constructed.

D.

Analysis

[35]

As
    I have stated, the issue on this appeal is whether Clublinks application to
    demolish the Glen Abbey golf course is properly governed by s. 33 or s. 34 of
    the
OHA.
This turns, in large measure, on whether a golf course can be
    a structure within the meaning of s. 34. As this is an issue of statutory
    interpretation, I agree with my colleague that the applicable standard of
    review is correctness because an issue of statutory interpretation is a
    question of law:
Canada National Railway Co. v. Canada (Attorney General)
,
    2014 SCC 40, [2014] 2 S.C.R. 135, at para. 33.

[36]

For
    the following reasons, however, I conclude that the application judge correctly
    found that Glen Abbey is properly regarded as a structure within the meaning
    of s. 34(1) of the
OHA
, such that Clublink properly framed its
    application under s. 34.

The Modern Approach to Statutory Interpretation

[37]

I
    begin with the overarching principles of statutory interpretation applicable to
    this appeal. The governing approach to statutory interpretation in Canada is the
    so called modern principle of statutory interpretation. The modern principle,
    first formulated by Elmer Driedger and adopted as the prevailing approach to
    statutory interpretation by the Supreme Court of Canada in
Rizzo
, is
    as follows:

[T]he words of an Act are to be
    read in their entire context and in their grammatical and ordinary sense
    harmoniously with the scheme of the Act, the object of the Act and the
    intention of Parliament.

[38]

The
    core teaching of the modern principle is that statutory language must always
    be interpreted purposively and in context. In other words, statutory
    interpretation cannot be founded on the wording of legislation alone:
Rizzo
,
    at para. 21. As summarized by Ruth Sullivan in
Statutory Interpretation,
3rd
    ed. (Toronto: Irwin Law, 2016), at p. 46:

The key point of the principle is
    that statutory interpretation cannot be founded on the wording of the
    legislation alone. The words of the text must be read and analyzed in light of
    a purposive analysis, a scheme analysis, the larger context in which the
    legislation was written and operates, and the intention of the legislature,
    which includes implied intention and the presumptions of legislative intent. In
    the course of resolving an interpretation problem, an interpreter must also
    consider the relevance of a wide range of rules, principles and maxims.

[39]

The
    Supreme Courts decision in
Rizzo
is illustrative in this regard. In
    that case, the issue was whether an employer petitioned into bankruptcy was
    required to pay employees termination pay and severance pay under ss. 40 and
    40a of the
Employment Standards Act
, R.S.O. 1980, c. 137,
    respectively. The Court of Appeal held that the plain meaning of those
    provisions indicated that termination pay and severance pay were payable only
    when the employer terminates the employment. In a bankruptcy, an employees
    employment is terminated not by the employer, but by the operation of law. As
    such, no termination or severance pay was required:
Rizzo
, at paras.
    18-19.

[40]

Iacobucci
    J., writing for a unanimous Supreme Court, reached a different conclusion. He
    accepted that at first blush the conclusion that an employee is terminated by
    an employer upon bankruptcy did not fit comfortably with the plain meaning of
    the impugned statutory provisions, but found that the Court of Appeals
    analysis was incomplete:
Rizzo,
at para. 20. Rather, it was
    necessary to look to the purpose of the impugned provisions, the purpose of the
    Act, the scheme of the Act, its legislative history and the consequences of
    each plausible interpretation. After engaging in that analysis, Iacobucci J.
    concluded that termination and severance pay were payable upon an employers
    bankruptcy.

[41]

As
Rizzo
indicates, the modern principle embodies a contextual approach
    to statutory interpretation. It instructs that a purely textual approach  focussing
    only on the literal or plain meaning of a statutory provision  may fail to
    adequately capture the legislatures intended meaning. This point is made in
Bell
    ExpressVu v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 26-27,
    another leading Supreme Court case on statutory interpretation:

Driedger's modern approach has been repeatedly cited by this
    Court as the preferred approach to statutory interpretation across a wide range
    of interpretive settings.

The preferred approach recognizes
    the important role that context must inevitably play when a court construes the
    written words of a statute: as Professor John Willis incisively noted in his
    seminal article Statute Interpretation in a Nutshell (1938), 16
Can. Bar
    Rev.
1, at p. 6, words, like people, take their colour from their
    surroundings.

[42]

Similarly,
    in his text
Interpretation of Legislation in Canada
, 4th ed. (Toronto:
    Carswell, 2011) at p. 46, Pierre-André Côte describes the modern principle as
    embodying the rise of contextual interpretation with a corresponding shift
    away from textual literalism and plain meaning:

Statutory interpretation requires
    the interpreter to weigh a series of factors before establishing the true, or
    at least best, meaning. The range of factors to be considered has been elastic,
    and has known historical expansion and compression. Currently, the list of
    mandatory or recommended factors is extensive.

This extension is an outgrowth of the rise of contextual
    interpretation, an approach increasingly favored by both doctrine and the case
    law. It is now recognized that it is impossible to determine the meaning of
    words in the absence of context. Today, it is fair to say that the Plain
    Meaning Rule, which restricts the interpreter to a consideration of the literal
    meaning of a clear text, has fallen into disrepute.

The urtext of broader approach to
    interpretive authority is  the modern principle of statutory interpretation.

It would be unreasonable to
    suppose that Driedgers principle expresses, in and of itself, every dimension
    of the Canadian interpretive practice. It is nonetheless true that it has
    materially contributed to the overthrow of the Plain Meaning Rule and the
    promotion of a contextual approach to interpretation that draws on a wide range
    of factors and is, in particular, open to the consideration of the objectives
    of the provisions and statues under examination.

[43]

It
    is important to appreciate the role that the ordinary meaning of statutory
    text plays in this interpretative framework. In this regard, ordinary meaning
    refers to the readers first impression meaning, the understanding that
    spontaneously comes to mind when words are read in their immediate context and
    the natural meaning which appears when the provision is simply read through:
Pharmascience
    Inc. v. Binet
, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 30;
McLean
    v. British Columbia (Securities Commission),
2013 SCC 67, [2013] 3 S.C.R.
    895, at para. 43. So understood, ordinary meaning refers to the readers
    understanding of the statutory text when read in its immediate context: Ruth
    Sullivan,
Sullivan on the Construction of Statutes
, 6th ed. (Markham:
    LexisNexis Canada, 2014), at para. 3.9.

[44]

The
    ordinary meaning is presumed to be the meaning intended by the legislature:
McLean
,
    at para. 43;
Belwood Lake Cottagers Association Inc. v. Ontario
    (Environment and Climate Change)
, 2019 ONCA 70, 431 D.L.R. (4th) 318
,
at
    para. 40, citing
Sullivan on the Construction of Statutes
, at para. 3.6.
    But ordinary meaning is not determinative; it is only one aspect of the
    modern approach. This is because [w]ords that appear clear and unambiguous may
    in fact prove to be ambiguous once placed in their context. The possibility of
    the context revealing a latent ambiguity  is a logical result of the modern
    approach to statutory interpretation:
McLean
, at para. 43, citing
Montreal
    (City) v. 2952-1366 Qué
bec Inc.
, 2005 SCC 62, [2005] 3 S.C.R.
    141, at para. 10. Thus, even when a statutory provision appears to have a
    settled meaning on first reading, the court is obliged to look at other
    indicators of legislative meaning as part of their work of interpretation:
McLean
,
    at para. 43.

[45]

A
    textual approach focussing on the ordinary meaning of a particular statutory
    term or phrase will also be less helpful when the impugned term or phrase
    admits of more than one possible understanding in common usage. The ordinary
    meaning of a particular statutory term may itself be contested. This reality
    was recognized in
Binet
, at para. 32, where LeBel J. said:

Nevertheless, it has to be
    admitted that textual interpretation has its limits. Before this Court, the
    parties submitted numerous definitions of the French word on taken from
    dictionaries, grammar books and other encyclopedic sources, and countless
    examples drawn from statutes in which the legislature used similar or different
    wordings to indicate the inclusion of all persons or of a specific group of
    individuals. That is why this Court now considers it important, even when a
    provision seems clear and conclusive, to nevertheless review the overall
    context of the provision. [Citations omitted.]

For this reason, the modern principle instructs that
    the words of a statute must be read in their grammatical and ordinary sense
harmoniously

with the scheme
    of the Act, the object of the Act and the intention of Parliament.

The Purpose and Object of the
OHA

[46]

There is no dispute as to the overarching purpose of the
OHA

    namely,
to provide for the conservation, protection and
    preservation of the heritage of Ontario:
St. Peters Evangelical
    Lutheran Church v. Ottawa
, [1982] 2 S.C.R. 616, at pp.
    623-624;
Toronto College Street Centre Ltd. v. Toronto (City)
(1986), 56 O.R. (2d) 522 (C.A.), at p. 531, leave to appeal refused,
    61 O.R. (2d) 669 (S.C.C.). To this end, the
OHA
confers broad powers upon municipalities to designate properties as
    being of cultural heritage value or interest, thereby interfering with private
    property rights.

[47]

I agree with my colleague that the application judge incorrectly
    characterized the purpose of the
OHA
as having
    a dual
purpose  to accomplish heritage conservation in a way that
    does not run counter to the property owner's rights (at para. 31) because, as
    a substantive matter, the
OHA
does affect the property ownership
    rights.
However, the Legislature has also recognized that the
    preservation of Ontarios heritage should be accomplished at the cost of the
    community at large, not at the cost of the individual property owner, and
    certainly not in total disregard of the property owners rights:
St.
    Peters
, at pp. 623-624;
Toronto College
, at pp. 531-532.

[48]

To this end, the
OHA
counterbalances the broad
    powers provided to municipalities to
designate

a property as being of cultural heritage value or interest with
procedural protections
for property owners when seeking
    to make changes to a designated property:
St. Peters,
at p. 626;
Toronto
    College
, at p. 532.

The Legislative History of the OHA

[49]

The legislative history of the
OHA
provides
    important context for the statutory distinction between ss. 33 and 34, and also
    identifies the legislative intent underpinning the different procedures and
    rights of appeal under both provisions.

[50]

The
    OHA was first enacted in 1974 as
The Ontario Heritage Act, 1974
, S.O.
    1974, c. 122 (the 1974 Legislation). The 1974 Legislation established the
    basic structure of the
OHA
and many of its features have been carried
    through to the current version of the
OHA
.

[51]

The
    early iterations of the
OHA
disclose a building-centric approach to
    heritage. In this regard, the 1974 Legislation conferred upon a municipality
    the power to designate a property as being of historic or
architectural
value or interest (emphasis added).
[4]
Hansard statements during debate on the 1974 legislation similarly indicate
    that the Legislature primarily contemplated that a designation would be made in
    respect of an historic or architecturally valuable
building
.
    Nevertheless, as in the current
OHA
, the 1974 Legislation defined
    property in Part IV to mean real property and includes all buildings or
    structures thereon: s. 26(b).

[52]

The
    important point for the purpose of the present appeal is that the 1974 Legislation
    was the genesis of the statutory distinction between the procedural route to
    alter a designated property (s. 33) and the procedural route to remove or
    demolish any building or structure (s. 34). As will become evident from the
    following discussion, this distinction reflects a particular balancing of
    private property rights and heritage conservation.

[53]

Under
    s. 33 of the 1974 Legislation, the property owner was required to apply to
    municipal council to make any alteration to the designated property where
    the alteration is likely to affect the reason for the designation. As in the
    current
OHA
, alter and alteration were defined broadly to mean to change
    in any manner and includes to restore, renovate, repair or disturb. The 1974
    Legislation provided that if the municipality refused the application, the
    property owner had a non-binding right of appeal to the Conservation Review
    Board. This persists in the
OHA
to
    date
.

[54]

Under
    s. 34 of the 1974 Legislation, the property owner was required to apply to
    municipal council to demolish or remove a building or structure on a
    designated property. However,
unlike
the current version
    of the
OHA
, the municipality did
not
have
    the power to ultimately prevent the demolition of the building or
    structure. At most, the municipality could delay the demolition or removal of
    the building or structure for a total of nine months. This was intended to give
    the municipality sufficient time to decide whether to expropriate the property,
    triggering an obligation to compensate the property owner.

[55]

Consistent
    with the building-centric approach to heritage, the 1974 Legislation provided
    that upon demolition of the building or structure the by-law designating the
    property would be repealed: 1974 Legislation, s. 34(5). This reflected the
    assumption that s. 34 would be engaged in circumstances where the property
    owner sought to make changes that would
wholly
    remove

the aspects of the property that gave rise to
    the heritage designation in the first place. This also explains the absence of
    any language in s. 34 that required the property owner to apply to demolish a
    building or structure
only
when that demolition
    engaged the reasons for the designation, similar to that in s. 33; a demolition
    or removal was assumed to always engage the reasons for the designation.

[56]

Thus,
    the 1974 Legislation  and the genesis of the statutory distinction between s.
    33 and s. 34 applications  reflects a particular balancing of private property
    rights and heritage conservation. The property owner remained ultimately
    entitled to demolish the building or structure and put the property to his/her
    desired use (subject only to the municipalitys power of expropriation). At the
    same time, the municipality could exercise greater control over proposed alterations
    to a designated property where the alteration would engage the reason for the
    designation. The central distinction between the two provisions at that point
    was that an application to demolish or remove a structure under s. 34 was
    assumed to effectively eliminate the basis for the designation. The
    paradigmatic example is the historic house whose owner was seeking the
    municipalitys approval to remove or demolish.

[57]

In
    2005, significant amendments were introduced to the
OHA
through the
Ontario
    Heritage Amendment Act
,
2005
, S.O. 2005, c. 6 (the 2005 Amendments).
    In particular, the 2005 Amendments provided the municipality the power to
    refuse outright  and not merely delay  an application to demolish a building
    or structure on a designated property under s. 34.

[58]

To
    counterbalance this expanded municipal power, the 2005 Amendments provided the
    owner with a binding right of appeal to the Ontario Municipal Board (now the
    LPAT). The introduction of these expanded procedural protections indicates
    that, consistent with the 1974 Legislation, the Legislature viewed the power of
    a municipality to refuse outright an application for demolition or removal of a
    structure as a more profound interference with private property rights. As with
    previous iterations of the
OHA
, once the municipality had approved the
    owners application  or the OMB had directed the municipality to approve the
    application  the municipality was obligated to repeal the by-law designating
    the property as being of cultural or historic value or interest.

[59]

Hansard
    statements made during debate on the 2005 Amendments repeatedly described the
    goal of the amendments as being to provide municipalities with increased power
    to control, and not merely delay, the demolition of heritage properties. The
    owners right to a binding appeal to the OMB was a critical corollary of this
    increased municipal power. For example,
during
    the first reading of the bill that introduced the 2005 Amendments, the Hon. M.
    Meilleur (Minister of Culture and Francophone Affairs) described the impetus
    behind the changes in the following terms:

Some key amendments
    to the
Ontario Heritage Act
we are introducing
    today include new municipal powers to prevent demolition of heritage buildings.
    This most important change will give municipalities tools to prevent rather
    than delay the demolition of heritage properties. This amendment will also ensure
    that increased demolition controls will be balanced with the landowner's right
    to binding appeal.

[60]

To summarize the foregoing discussion, a number of key points emanate
    from the legislative history of the
OHA,
generally,
    and ss. 33 and 34, in particular:

·

The structure of the
OHA
 and s. 33 and s. 34

is derived from an early building-centric paradigm of heritage
    properties. As my colleague acknowledges, to the extent that the case law is
    instructive, heritage issues have focused primarily on heritage buildings.
    There is no difficulty applying s. 33 and s. 34  and delineating the
    boundaries of the two provisions  to a property designated under the
OHA
because
    of the cultural heritage attributes of a building on the property.

·

The interpretive difficulty in this appeal arises largely
    because municipal heritage planning has, at least in practice, evolved beyond a
    focus on cultural heritage buildings in a manner not fully reflected in the
OHA.
For example, the Town purported to designate Glen Abbey as a cultural
    heritage landscape. But the term cultural heritage landscape is not found in
    the
OHA
; it is derived from the Provincial Planning Policy Statement, the
    Towns by-laws and other planning instruments.

·

The assumption underpinning the 1974 Legislation  and the initial
    division between ss. 33 and 34  was that s. 34 would be engaged in
    circumstances where the proposed changes to the designated property would
wholly remove

the reason for the designation
    under s. 29 of the
OHA
.

·

The added procedural protections for property owners in s.
    34 were premised on
t
he
    understanding that the refusal of an application to permit the owner to
    demolish a building or structure (rather than to merely make an alteration) was
    a more profound interference with private property rights.

The Scheme of the
OHA
and ss. 33 and 34

[61]

With that legislative history in mind, I turn now to the scheme of the
    current
OHA.
As I have emphasized,
the words of a statute must be interpreted in context  and with
    regard to related statutory provisions. This is particularly true when a
    statute, as here, provides a distinction between two different procedural
    routes dealing with similar applications. As a result, I agree with my
    colleague that ss. 33 and 34 must be considered together: the scope of s. 34
    can only be determined with reference to s. 33, and vice-versa. In this regard,
    a number of observations can be made with respect to ss. 33 and 34.

[62]

To begin with, neither s. 33 nor s. 34 interfere with the municipalitys
    right to designate, protect or acquire the property in question.
As
    noted above, a municipalitys right in this respect is indefeasible as long as
    it complies with the legislative directions as to its procedure:
St.
    Peters
, at p. 626. Both provisions further the overarching purpose of the
OHA
 namely, to conserve, protect, and preserve Ontarios heritage
    because the ultimate decision as to whether to approve an alteration or
    demolition is made by the municipality or the LPAT (an independent
    administrative body). The property owner is not free to deal with his or her
    property as he or she chooses.

[63]

Second,
    both ss. 33 and 34 are intended to provide procedural protections to property
    owners that seek to make changes to a designated property: see
St. Peters
,
    at p. 627;
Toronto College
, at pp. 531-32. From the perspective of the
    property owner, s. 34 provides considerably
greater
procedural protections because the property owner has the right to appeal the
    municipalitys refusal to approve the demolition or removal to an independent
    tribunal that has the power to bind the municipality.

[64]

Third,
    the text of ss. 33 and 34 indicates that s. 34 was intended to apply to a
subset
of proposed alterations to a designated property, where the property
    owner seeks to demolish or remove a building or structure on the designated
    property. Alter and alteration are defined broadly to mean
to change
in any manner and includes to restore,
    renovate, repair or disturb (emphasis added). While demolition or removal
    are not defined in the
OHA
, the statutory definition of alteration
    is sufficiently broad to embrace a demolition. In others, the demolition or
    removal of a structure is a change to the designated property.

[65]

Finally, the fact that a successful application
    by a property owner under s.  34 leads to the automatic repeal of the
    designation by-law under s. 29 of the
OHA
 a
    feature of each successive iteration of the
OHA
from the 1974 Legislation to present  indicates that the
Legislature
    assumed that the demolition or removal of the building or structure in question
    would wholly remove the cultural heritage attributes associated with the
    designated property.

[66]

To summarize,
the scheme of the
OHA
indicates
    that s. 34 was intended to provide greater procedural protections to property
    owners with respect to a subset of alterations involving a demolition or
    removal of a building or structure that would wholly remove the cultural
    heritage attributes associated with the property. This is consistent with the
    legislative history of the
OHA
, discussed above. As a result, I
    respectfully disagree with my colleague that the different appeal routes as
    between ss. 33 and 34 are irrelevant to the interpretive issue raised by this
    case. The different procedural protections as between ss. 33 and 34 are an
    important part of the scheme of the
OHA
and reflect a particular
    balancing of private property interests and the public interest in conserving
    property of cultural heritage value or interest.

[67]

In light of the purpose of both ss. 33 and 34,
    and their relationship to the overall objective of the
OHA
of protecting properties of cultural heritage value, it is not
    necessary, and would be inappropriate, to interpret s. 33 broadly and s. 34 restrictively.
    While my colleague cites
Toronto College
for
    the proposition that s. 33 of the
OHA
is to be
    interpreted broadly, the issue in that case was whether a proposed alteration
    was likely to affect the reason for the designation under s. 33. In light of
    the purpose of the
OHA
, it makes sense to
    interpret that language broadly so as to trigger the requirement for municipal
    approval of a proposed alteration. The same cannot be said when it is accepted
    that an application for municipal approval is required, and the interpretive
    issue is whether the property owner must proceed under ss. 33 or 34. Put
    somewhat differently, it does not undermine the purpose of the
OHA
to read s. 34  and the circumstances in which a property owner will
    be afforded appreciably greater procedural protections  broadly.

The Text of s. 34

[68]

With
    this contextual backdrop in mind, I turn now to the text of s. 34. As I have
    noted, central to this appeal is the meaning of the term structure within
    that provision. Since the term structure is not defined in the
OHA
,
    it is necessary to consider the term in the immediate context of s. 34, and
    with regard to the broader scheme and purpose of the
OHA.

[69]

My
    colleague concludes
that a golf course is not a structure
    within the meaning of s. 34 of the
OHA
,
    relying primarily on the ordinary meaning of that term. Indicative of his
    approach is the statement, at para. 114 of his reasons, that no ordinary
    person would visit any golf course and be heard to comment My, isnt this a
    beautiful structure.

[70]

I reach a different conclusion, for a number of reasons.

[71]

First, as I have discussed, the ordinary meaning of a statutory
    term is only the starting point for the statutory interpretative exercise:
Belwood
, at paras. 40-42;
McLean
, at
    paras. 42-44. A statutory term that appears to have a clear meaning may be
    ambiguous once placed in its proper context:
McLean
, at para.
    43, citing
Montreal (City)
, at para. 10. As I have suggested above,
    the legislative context for the use of the term structure in s. 34 is the
    initial building-centric conception of cultural heritage and assumption that
    the demolition of a building or structure on the designated property would
    wholly remove the propertys cultural heritage value or attributes.

[72]

Second,
    while I accept that a golf course may not be intuitively understood to be a
    structure, the term structure is itself a mutable concept. In this vein, a
    structure has been variously defined as a thing constructed. For example,
In
Algonquin Power (Long Sault) Partnership v. Chubb
    Insurance Co. of Canada (2003), 50
C.C.L.I. (3d) 107 (Ont. S.C.),
    the court itemized the following definitions of structure:

·

Any construction, production or piece of work
    artificially built up or composed of parts purposely joined together:
Blacks
    Law Dictionary,
7th ed., (St. Paul, MN: West Publishing
    Co., 1999) sub verbo structure.

·

[A]nything which is constructed  it involves
    the notion of something which is put together consisting of a number of
    different things  constructed as to make one whole, which is then called a
    structure:
R. v. Bedard

(1976), 31 C.C.C. (2d)
    559

(Ont. C.A.), affd
    [1978] 1 S.C.R. 1096.

·

That which is built or
    constructed, a building or edifice of any kind; a fabric or framework of
    material parts put together. It is something which is constructed, and involves
    the notion of something which is put together, consisting of a number of different
    things that are so put together or built together, constructed as to make on
    whole which is then called a structure:
Whitchurch-Stouffville (Town) Chief
    Building Official v. 893472 Ontario Ltd.
(1994), 23 M.P.L.R. (2d) 307 (Ont. Div.
    Ct.).

[73]

Similarly,
in
Cardiff Rating
    Authority and Cardiff Assessment Committee v. Guest Keen Baldwins Iron and
    Steel Co. Ltd
., [1949] 1 K.B. 385 (C.A.), at p. 396 (a
    case relied upon by my colleague), Denning L.J. defined structure in the
    following terms:

A structure is
    something which is constructed, but not everything which is constructed is a
    structure. A ship, for instance, is constructed, but it is not a structure.
A
structure
is something of
    substantial size which is built up from component parts and intended to remain
    permanently on a permanent foundation;
but it is still a
    structure even though some of its parts may be movable, as, for instance, about
    a pivot. [Emphasis added.]

[74]

Notably,
    the Town has itself defined the term structure in its zoning by-law in
    similarly expansive terms: a structure is anything that is erected, built or
    constructed of parts joined together.

[75]

The
    somewhat amorphous definitions of the term structure offered in the case law
    underscores the importance of interpreting the term in context:
Binet
,
    at para. 32. Nonetheless, Glen Abbey accords with this understanding of a
    structure as being a thing constructed. The uncontroverted evidence filed
    on the application  and accepted by the application judge  is that a golf
    course is the product of significant construction and engineering. It is built
    up of component parts and intended to remain permanently on its foundation.

[76]

Third,
    and more significantly,
the use of the term structure
    elsewhere in the
OHA
indicates that the
    Legislature intended to provide the term a broad meaning, and intended the term
    to capture constructed entities comprised primarily, if not entirely, of land.
    Part VI of the
OHA
(dealing with the
    conservation of resources of archaeological value) defines property, for the purposes
    of that part, as real property, but does not include buildings or structures
    other than ruins, burial mounts, petroglyphs or
earthworks
 (emphasis added):
OHA
, s. 47. The
    fact that the Legislature felt it necessary to qualify the meaning of structure
    in Part VI to exclude those structures other than those enumerated in s. 47,
    indicates that elsewhere in the
OHA
(including
    Part IV, which deals with the conservation of property of cultural heritage
    value or interest)

it
    intended the term structure to capture earthworks and other constructed
    landscape features.
This also indicates that the
    Legislature did not use the term structure in Part IV in association with the
    term building in s. 34 to capture
only
building-like structures.

[77]

Fourth, I am not satisfied that the language supports
    the meaning of the word on which is adopted by my colleague in dissent.
    Neither the term a building or structure
on
the property in s. 34(1), nor the definition of property in s.
    26 as real property and [including] all buildings and structures
thereon
 (emphasis added), modifies the
    meaning of the term structure to refer only to structures that are
    physically located above, and separate from, the ground.

[78]

The term property in s. 34(1) refers to the
    property designated under s. 29 of the
OHA
. Here,
    the designated property is defined with reference to the real property
    description in the Ontario Land Titles system, as set out in Schedule A to the
    designation by-law. Glen Abbey  the golf course  is not co-extensive with the
    designated property. The legal description of the property subject to the
    designation includes real property surrounding the real property on which the
    golf course is situated, including the Greeneagle Property. Thus, the term on

in s. 34 appears to be used to identify buildings or
    structures contained
within

a particular description of real property. This is also consistent with
    how one speaks in identifying features of real property. For example, one could
    refer to a river, creek, pond or other feature consisting primarily if not
    entirely of earth or other natural features as being located
on
a particular description of real property. For example,
    she has a swimming pond on the property.

[79]

My colleague relies on the language of a
    structure or building
on
the property (in s. 33) and real property and includes all buildings
thereon
 (in s. 26) in concluding that
    it would stretch the term structure past its breaking point to suggests a
    golf course is a structure because the components of a golf course consist
    fundamentally of earth. As I have stated, I am not satisfied that the language
    on or thereon modifies the term structure to refer only to items that are
    wholly distinct from land. There is nothing in the language of the
OHA
that dictates that result. To the contrary, to the extent
    that the Legislature turned its mind to the issue, it chose to define the term
    structure in Part VI of the
OHA
in a manner
    that indicates it employed the term structure elsewhere in the
OHA
, including in Part IV, to encompass earthworks and other entities
    consisting fundamentally of earth.

[80]

Moreover,
    the fact is that the proposed demolition/redevelopment of Glen Abbey would
    entirely obliterate the qualities founding the heritage designation. Schedule B
    to the by-law designating Glen Abbey and the surrounding property as being of
    cultural value or interest describes the propertys cultural heritage value or
    interest as follows:

·

Design/Physical Value  Glen Abbey is the first course in the
    world to significantly enhance the spectator experience by combining stadium
    design with a hub-and-spoke layout;

·

Historic/Associative Value  Glen Abbey is one of the most
    significant works by one of golfs most significant figures; and

·

Contextual Value  Glen Abbey is a landmark with the Town and
    has helped to define the character of the Town.

Both instruments further defined Glen Abbeys heritage
    attributes as including, among other things:

·

The historic use and ongoing ability of the property to be used
    for championship, tournament and recreational golf;

·

The historic use and ongoing ability to host championship and
    other major golf tournaments, such as the Canadian Open; and

·

The close and ongoing association of the course design with Jack
    Nicklaus/Nicklaus Design.

[81]

There can be no doubt that Clublinks plans for Glen Abbey and the
    surrounding property, if realized, would wholly remove the cultural heritage
    attributes identified by the Town. This is precisely the type of situation the
    Legislature, from the introduction of the 1974 Legislation through to the 2005
    Amendments, contemplated would be captured by s. 34  namely, that the proposed
    demolition or removal of a building or structure would engage the very reason
    for the propertys designation, with a successful application necessitating the
    repeal of the designation by-law: see
OHA,
s.
    34.3. The fact that Clublinks re-development plans would eliminate the
    cultural heritage attributes associated with the designated property favors
    interpreting the term structure broadly to capture Glen Abbey, in order to
    give effect to the legislative intent underpinning s. 34.

[82]

I pause here to respond to some of the arguments raised by my
    colleague in response to this last point. First, he suggests, at para. 130,
    that it is more appropriate to construe Clublinks application as falling
    within s. 33 of the
OHA
because Glen Abbeys
    cultural heritage value is bound up in the land itself, which would remain (at
    least in part) if Clublink was allowed to demolish the golf course. With
    respect, this ignores the Towns own characterization of the propertys
    cultural heritage attributes, which defines the cultural value of the property
    with primary reference to the features
of the golf course
,
including
    the historic use and ongoing ability of the property to be used for
    championship, tournament, and recreational golf. The Town does not assert that
    there is cultural or heritage value in the turf itself. If Glen Abbey is
    demolished, the cultural heritage attributes asserted by the Town will be
    wholly eliminated
.

[83]

My colleague also suggests, at para. 131 of his reasons, that it is
    appropriate to circumscribe the scope of s. 34 because a successful application
    under that provision will result in the repeal of the designation by-law, even
    if the property owner has not directly challenged the heritage designation. I
    cannot agree. The Legislature has chosen to provide a property owner multiple
    avenues by which it may seek to deal with property subject to a designation. The
    fact that a property owner has chosen to proceed in a certain manner cannot
    alter the proper interpretation of the statutory provisions at issue. I would
    also note that, on the facts of this case, Clublink had applied to redevelop
    Glen Abbey and the surrounding property into a commercial and residential
    development
before

the Town passed the
    designation by-law. It made practical sense for Clublink  in light of its
    developed plans for the property and the Towns stated opposition to those
    plans  to forgo an initial challenge to the designation itself  and proceed
    to apply under s. 34 of the
OHA.

[84]

Finally, tacit in my colleagues reasons is the assumption that it
    furthers the purpose of the
OHA
to broadly
    construe the circumstances in which the municipality will have the final say
    over the proposed change to the designated property. In other words, s. 33
    (giving the municipality the final say) should be construed broadly, while s.
    34 (giving the LPAT the final say) should be construed narrowly, particularly
    because a successful application will result in the repeal of the designation
    by-law
.

[85]

Again, I cannot agree. While it is consistent with the purpose of
    the
OHA
to construe broadly the municipalitys
    power to designate a property as being of cultural heritage value or interest,
    ss. 33 and 34 are concerned with providing corresponding procedural protections
    to property owners that seek to make changes to their property. Both ss. 33 and
    34 are consistent with the overarching goal of the
OHA

to conserve, protect, and preserve Ontarios heritage
    because the ultimate decision as to whether to approve an alteration or
    demolition is made by a public body. Both provisions fetter the property
    owners ability to deal with their property as they would otherwise choose to
    do. There can be no assumption that the LPAT will act in a manner inconsistent
    with the purpose of the
OHA
, and the balancing of the public interest
    and private property rights that it envisions.

[86]

Subsequent
    to the hearing of this appeal, the
More Homes, More Choice Act
, S.O.
    2019, c. 9, received royal assent. Schedule 11 of the Act, once it is
    proclaimed into force, will amend ss. 33 and 34 of the
OHA
. We invited
    counsel to make written submissions on the impact, if any, of these amendments
    to their appeal. The parties submitted that the amendments did not impact the
    present appeal. Accordingly, I have not considered the amendments in my
    analysis.

Conclusion

[87]

As a result, I conclude that Glen Abbey is a
    structure on a designated property within the meaning of s. 34(1). Clublink
    properly framed its application to demolish and/or remove Glenn Abbey under s.
    34.

[88]

This conclusion flows from the text of s. 34,
    the context of the
OHA
, and the purpose of the
OHA
, generally, and ss. 33 and 34,
    specifically, viewed in light of the statutes legislative history. Section 34
    applies because Glen Abbey is the product of significant construction and
    engineering, comprised or built up of constituent parts, and intended to remain
    permanently on the property. This interpretation accords with the recognition
    that the term structure, when used in the
OHA
, embraces earthworks. It is also consistent with the legislative
    intention underpinning both the
OHA
,
    generally,

and s. 34,
    specifically, to conclude that Glen Abbey is a structure within the meaning
    of s. 34 because Clublinks plans, if realized, would wholly remove the
    cultural heritage attributes identified in respect of the designated property.

E.

Disposition

[89]

For the foregoing reasons, I would dismiss the
    appeal, subject to one caveat. At the hearing of the appeal, the parties agreed
    that the application judge erred in ordering the Town to process Clublinks s.
    34 application. Clublinks request for
mandamus
had been withdrawn on consent. As a result, I would set aside that
    aspect of the application judges order, but otherwise dismiss the appeal.

[90]

Clublink is entitled to its costs of the appeal,
    fixed in the agreed upon amount of $35,000, plus disbursements and HST.

A.
    Harvison Young J.A.

I
    agree Doherty J.A.

Nordheimer J.A.
    (dissenting):

Analysis

[91]

I
    have reviewed the reasons of my colleague. I do not agree with her analysis or
    the conclusion that she reaches. In my view, if Clublink wishes to obtain
    permission to proceed as it plans, then it must seek the permission of the Town
    to do so under s. 33 of the
OHA
.

[92]

Before
    starting my analysis, I should say something about the standard of review. At
    its core, this appeal raises the issue of the proper interpretation to be given
    to the
OHA
in general and, more specifically, to the word structure
    as it is used in s. 34. The proper interpretation of a statute is generally
    considered to raise a question of law regarding which the standard of review is
    correctness:
Canadian National Railway Co. v. Canada (Attorney General),
2014
    SCC 40, [2014] 2 S.C.R. 135, at para. 33. In my view, that is the standard of
    review that applies to this appeal.

[93]

I
    begin my analysis by reproducing the two sections of the
OHA
that are
    at the heart of this dispute. Section 33(1) reads:

No owner of property designated
    under section 29 shall alter the property or permit the alteration of the
    property if the alteration is likely to affect the propertys heritage
    attributes, as set out in the description of the propertys heritage attributes
    that was required to be served and registered under subsection 29 (6) or (14),
    as the case may be, unless the owner applies to the council of the municipality
    in which the property is situate and receives consent in writing to the
    alteration.

[94]

Section
    34(1) reads:

No owner of property designated
    under section 29 shall demolish or remove a building or structure on the
    property or permit the demolition or removal of a building or structure on the
    property unless the owner applies to the council of the municipality in which
    the property is situate and receives consent in writing to the demolition or
    removal.

[95]

Each
    of these sections has an appeal process but the appeal processes differ between
    the two sections. Under s. 33, if the municipal council refuses an owners
    application, the owner of the property may seek an appeal to the Conservation
    Review Board. The Conservation Review Board is then directed to hold a hearing
    and produce a report in which it is to recommend whether the application should
    or should not be approved. The view of the Conservation Review Board is not
    binding on the municipal council.

[96]

In
    contrast, if the municipal council refuses an owners application under s. 34,
    the owner of the property can seek an appeal to the Local Planning Appeal
    Tribunal (formerly the Ontario Municipal Board) under s. 34.1. The Local
    Planning Appeal Tribunal must hold a hearing after which it can dismiss the
    appeal, or it can order the municipal council to grant the application. The
    municipal council is bound by the decision of the Local Planning Appeal Tribunal.
    If the municipal council approves the application, or is directed by the Local
    Planning Appeal Tribunal to approve the application, the municipal council must
    repeal the s. 29 designation by-law:
OHA,
s. 34.3.

[97]

The
    application judge placed considerable reliance on the different routes of
    appeal in terms of his conclusion as to whether s. 34 applied to Clublink and
    its plans for Glen Abbey. I believe that the application judge overemphasized
    this issue in his interpretive analysis.
[5]
It is not clear to me how the appeal routes inform the proper definition of the
    word structure in s. 34 or the decision on whether s. 33 or s. 34 applies to
    Clublinks plans. I see no justification for giving s. 34 a broad
    interpretation and s. 33 a narrow one just because of a difference in the
    appeal routes. The rules of statutory interpretation do not depend on such a
    distinction. Rather, those rules apply to both sections equally. Further, and
    as I shall explain, to the extent that the proper interpretation of the
OHA
has been previously considered, existing authorities make it clear that s. 33
    is to be given a broad and purposive interpretation. That approach would also
    be consistent with the purpose of the
OHA
.

[98]

The
    other overarching concern that I have with the application judges reasons is
    that, notwithstanding the conflict between the parties over which of the two
    sections should apply, the application judge never engaged in any consideration
    or interpretation of s. 33. Rather, the application judges entire analysis is
    based solely on s. 34. He does not give any consideration as to how s. 34 and
    s. 33 are to work together in the overall scheme of the
OHA
.

[99]

Contrary
    to my colleagues suggestion, I do recognize that the Supreme Court of Canada
    has been clear that the interpretation of any section in a statute is to be
    undertaken harmoniously with the scheme of the Act:
Rizzo & Rizzo
    Shoes Ltd (Re),
[1998] 1 S.C.R. 27, at para. 21. As Ruth Sullivan explains
    in
Sullivan on the Construction of Statues
, 6th ed. (Markham:
    LexisNexis, 2014) at §13.12:

When analyzing the scheme of an
    Act, the court tries to discover how the provisions or parts of the Act work
    together to give effect to a plausible and coherent plan. It then considers how
    the provision to be interpreted can be understood in terms of that plan.

My concern is that the application judge did not
    follow that approach.

[100]

The purpose of the
OHA
was discussed by the Supreme Court of Canada in
St Peter's Evangelical
    Lutheran Church (Ottawa) v. Ottawa (City),
[1982] 2 S.C.R. 616. In that
    case, McIntyre J., at p. 625, adopted the purpose as expressed by MacKinnon
    A.C.J.O. in this court, from which the appeal had been taken:

It is to preserve and conserve for
    the citizens of this country
inter alia
, properties of historical and
    architectural importance. The Act is a remedial one and should be given a fair
    and liberal interpretation to achieve those public purposes which I have
    recited.

[101]

This purpose of the
OHA
was reiterated by this court in
Toronto College Street Centre Ltd v. City
    of Toronto et al.
(1986), 56 O.R. (2d) 522 (C.A.), leave to appeal
    dismissed 61 O.R. (2d) 669 (S.C.C.), where Cory J.A. said, at p. 531:

The aim of the
Ontario
    Heritage Act
is to conserve, protect and preserve the heritage of Ontario.

[102]

This court then went
    on to consider the purpose of s. 33 itself. On that point, Cory J.A. said, at
    p. 534:

A reading of the
Ontario
    Heritage Act
as a whole makes it clear that s. 33 must be given a wide and
    liberal interpretation. To do otherwise would frustrate the very purpose and
    intent of the Act.

[103]

While there is no
    corresponding judicial determination of the scope to be given to s. 34, I
    accept that there is no compelling reason to give that section any less
    interpretative muscle given the overall purpose of the statute. Suffice it to
    say that it is well-established that, in considering the
OHA
, its
    provisions are to be interpreted broadly in order to accomplish the
    acknowledged purpose of the statute. Both sections must therefore be
    interpreted with the ultimate goal of the statute in mind. The differences in
    the appeal routes do not help in any principled approach to the interpretive
    analysis.

[104]

I now turn to my
    analysis regarding the proper interpretation of the two sections. As I shall
    explain, that analysis is complicated by the reality that it is not immediately
    apparent why the distinction is statutorily drawn between ss. 33 and 34.
    Nevertheless, the proper starting point in interpreting any text is that the
    ordinary meaning understood by the reader is assumed to be the meaning intended
    by the writer. On that point, I again quote from Ruth Sullivan,
Sullivan on
    the Construction of Statutes,
at §3.9:

Most often, however, ordinary
    meaning refers to the readers first impression meaning, the understanding that
    spontaneously comes to mind when words are read in their immediate context.

[105]

On this interpretative
    exercise, I agree with the initial view of the application judge that having
    reference as to how a particular word, such as structure, has been
    interpreted when used in other statutes or contexts is not particularly
    helpful. Other statutes will have purposes and schemes that are very different
    from the purpose and scheme of the
OHA
. For example, determining how
    the term structure may have been interpreted for the purposes of the
Income
    Tax Act
, R.S.C., 1985, c. 1 (5th Supp.), or, more specifically, how that
    statute might treat expenses associated with operating a golf course, does not
    provide any assistance as to the proper interpretation of that word for heritage
    purposes.

[106]

I would also note, on
    this point, that at least one of the cases on which the application judge
    placed reliance  namely,
Calgary Golf & Country Club v. Calgary
    (City),
2006 ABQB 312, 408 A.R. 292  expressly avoided making any
    determination of the meaning of the word structures. The judge, on appeal in
    that case, decided that the resolution of that issue was not necessary for the
    purpose of deciding the issue that was before him:
Calgary Golf,
at
    para. 34.

[107]

In my view, the
    meaning that would come spontaneously to the mind of an ordinary person,
    reading the provision, would not be that a golf course is a structure. In
    reaching that conclusion, I am mindful of the fact, as I believe any person
    would be, that the creation of a golf course involves considerable
    construction. Significant quantities of earth may need to be moved and
    fashioned into mounds and other features of the course, including greens and
    tees. Earth has to be removed to create ponds and bunkers. Irrigation systems
    have to be routed throughout the course. Trees may have to be added, or moved,
    or removed. Electrical cables have to be installed for different purposes
    including, as is the case with Glen Abbey, cables for technological purposes,
    including large display screens.

[108]

The fact that there is
    considerable engineering and construction expertise involved in creating a golf
    course does not lead inexorably to the ultimate creation being properly defined
    as a structure, however. As Denning L.J. aptly said in
Cardiff Rating Authority
    and Cardiff Assessment Committee v. Guest Keen Baldwin's Iron and Steel Co.,
    Ld.,
[1949] 1 K.B. 385 (C.A.) at p. 396:

A structure is something which is
    constructed, but not everything which is constructed is a structure.

[109]

I am equally mindful
    of the fact that many golf courses will incorporate, or be fashioned around,
    naturally occurring features. Indeed, Glen Abbey itself draws heavily on the
    naturally occurring features of Sixteen Mile Creek to create the impact of the
    valley holes.

[110]

None of these
    realities changes what a person sees when they visit a golf course and that is
    land. Land that stretches out in every direction, albeit often in a very
    sculpted way. Land that is covered with grass, trees, bushes and the like, of
    varying heights and types. And, of course, a collection of tees, greens,
    bunkers and, sometimes, ponds.

[111]

The nature of the
    construction involved in a golf course is explained in the affidavit of Thomas
    McBroom that was filed on behalf of Clublink. I understand that there was a
    dispute between the parties as to the admissibility and use that could be made
    of this evidence. The Town submitted that Mr. McBrooms evidence was improper
    opinion evidence that should be given no weight. Clublinks position was that
    the evidence was factual and related to how golf courses are constructed.
    Notwithstanding this dispute, and the written submissions made respecting the
    evidence, it does not appear that the application judge ever addressed the
    evidentiary issue.

[112]

I do not see that much
    turns on this disagreement. There cannot be any serious dispute that the
    creation of a golf course, especially a championship golf course, involves many
    different forms of construction. I tend to agree with Clublink that Mr.
    McBrooms affidavit simply provides factual information that might be of
    assistance to a court in understanding the steps involved in constructing a
    golf course. His evidence has relevance for that very limited purpose.

[113]

In terms of my
    analysis, I would note two things arising from Mr. McBrooms affidavit. One is
    his statement that golf course design is a speciality within the landscape
    architecture umbrella. The other is his general observation that golf courses
    involve the manipulation of land. While both are small points, neither of
    these observations fit comfortably with the notion that a golf course is a
    structure.

[114]

Of more importance,
    however, is the reality that no ordinary person would visit any golf course and
    be heard to comment My, isnt this a beautiful structure. Rather, the
    comments would be directed to the landscape that is displayed before them and
    its aesthetic value. Indeed, Mr. McBroom remarks on the importance of
    aesthetics in the creation of a golf course, noting that bunkers and ponds,
    among other things, may be placed just for that purpose.

[115]

I am not unmindful of
    the reason why Clublink has the need to try and qualify Glen Abbey as a
    structure. It does so in order to have resort to a different appeal process
    one that binds the Town. As I earlier said, however, the practical economic
    interest that drives Clublink to want to invoke that appeal process cannot
    properly inform the meaning to be given to the word structure in the context
    of the
OHA
. I would say that that is especially so since the
OHA
is not generally concerned with economic interests. Rather, it is concerned
    with the preservation of the cultural and historical heritage aspects of the
    province.

[116]

On this point, it
    appears to me that the application judge fundamentally misconstrued the purpose
    of the
OHA
. In his reasons, at para. 31, the application judge said:

The dual aspect of the heritage policy
    was reiterated by the Court of Appeal in
Toronto College Centre Street Ltd.
    v Toronto (City)
(1986), 56 OR (2d) 522, at para 38. Cory JA, for a
    unanimous Court, stressed that the
OHA
is to be interpreted
    purposively, and that the purpose is to accomplish heritage conservation in a
    way that does not run counter to the property owner's rights.

[117]

With respect, that is
    not a proper reading of what Cory J.A. said in
Toronto College Centre
    Street
. At no point did this court, or for that matter any other court,
    interpret the
OHA
as requiring that heritage conservation had to be
    undertaken in a way that does not run counter to the property owners rights.
    Indeed, it will be self-evident that a heritage designation will, by
    definition, interfere and limit a property owners rights because it will
    restrict the use to which a property owner can put its property. This very
    point was made by McIntyre J. in
St Peter's Evangelical Lutheran Church
    (Ottawa)
when he said, at p. 626:

To protect the heritage of Ontario
    the municipalities were given power to designate property of their choice and
    to suspend thereby many of the rights of private ownership.

[118]

The application
    judges erroneous interpretation of the purpose of the
OHA
undermines
    his analysis and conclusion.

[119]

Returning then to the
    interpretation of the word structure, after referencing case law dealing with
    the term structure in other contexts, the application judge said, at para.
    42:

If a landfill and a drag strip are
    "structures" because of their engineered features, and if a golf
    course is a "structure" for income tax depreciation purposes and for
    municipal tax assessment purposes, then a golf course can certainly be a
    structure for cultural heritage purposes.

[120]

I do not quarrel with
    the proposition that a golf course can be a structure for cultural heritage
    purposes. But that is not the question. The Legislature might have chosen to
    define structure in the
OHA
such that golf courses and the like were
    brought within its grasp, but it did not do so. Thus, the question for this
    court is whether a golf course
is
a structure
    under the
OHA
, starting with the ordinary meaning of that term, and
    with the scheme of the statute firmly in mind.

[121]

I am reinforced in my
    conclusion that Glen Abbey is not properly characterized as a structure for the
    purposes of the
OHA
by a number of factors, beyond the reality of a
    reasonable persons first impression meaning. First is the fact that there is a
    definition of the word property in Part IV of the
OHA
. Part IV
    includes ss. 33 and 34. Property is defined in s. 26 as real property and
    includes all buildings and structures thereon. It follows, from this
    definition, that a structure is something that is located
on
real property. Similarly, s. 34(1) refers to the
    demolition of a building or structure
on
the
    [designated] property (emphasis added). The designation by-law identifies the
    real property described as Schedule A to the by-law as the property subject
    to the s. 29 designation. In my opinion, it stretches the definition of
    structure past its breaking point to suggest that tees, greens, fairways and
    rough, constitute items that are located on real property. Each of these
    items consist fundamentally of earth. They are part of the earth. Indeed, they
    depend on the earth to survive. There is no logical or sensible way of making a
    demarcation between where any fairway ends and the land (i.e. the real
    property) begins. They are one and the same.

[122]

Second is the fact
    that there is a definition of alter in the
OHA
. It is defined in s.
    1 as meaning to change in any manner and includes to restore, renovate, repair
    or disturb and alteration has a corresponding meaning. What Clublink
    proposes to do with Glen Abbey is essentially to bulldoze the property, to fill
    in the ponds and bunkers, and flatten the various berms and other vantage
    points so that the property becomes suitable for use as residences, or
    buildings, or malls and the like. In my opinion, that intention, if realized,
    would much more reasonably be characterized as constituting a change in the
    property, particularly a change in any manner, than it would a demolition
    or removal which are the terms used in s. 34.

[123]

It is at this point
    that I return to consider the relationship between ss. 33 and 34. I earlier
    said that it is not immediately clear why the Legislature determined that it
    was necessary to have both sections. Nevertheless, I note that these two
    sections have been in the
OHA
since the introduction of the original
    statute in 1974. At that time, however, a municipality could not prevent the
    ultimate demolition of a building or structure. The municipality could, at
    most, delay that action for a sufficient period, apparently to allow the
    municipality enough time to expropriate the building or structure and thus preserve
    it  a notably expensive and time-consuming process.

[124]

In any event, in 2005,
    significant amendments were made to the
OHA
, particularly to s. 34.
    Those amendments now allowed a municipality to actually prevent the demolition
    or removal of a building or structure. In turn, though, any decision by the
    municipality to do so was subject to a binding appeal to the Local Planning
    Appeal Tribunal.

[125]

It appears that the
    purpose behind these amendments was two-fold. One was to allow a municipality
    to prevent the demolition or removal of a building or structure that was deemed
    to be of cultural heritage value or interest without having to engage in the
    costly process of expropriating the building or structure. The other was to
    provide a measure of protection to the owner of the building or structure, who
    would now have a binding and independent appeal route from any such decision by
    a municipality.

[126]

It would seem that
    this new structure was developed with the focus being on the paradigmatic model
    of heritage issues being directed towards buildings. My colleague appears to
    accept that was the focus. Indeed, to the degree that the case law provides any
    insight, it appears that heritage issues have generally fixated on buildings
    and other related structures. It is only more recently that other elements of
    our environment, such as landscapes, have come to be seen as having cultural
    heritage value or interest and thus warranting overriding public protection. This
    view would also be consistent with the early building-centric application of
    the
OHA
, which focused on cultural and
architectural
value (emphasis added).

[127]

However, and contrary
    to my colleagues conclusion, none of this background, or theory regarding the
    interrelationship between these two sections, requires that the
OHA
,
    or any of its provisions, be given an unnatural or strained interpretation. It
    may well be that the Legislature viewed buildings and structures as being the
    most common form of private property that would attract cultural heritage value
    or interest and involve the greatest intrusion on the rights of private
    property owners. Thus, the Legislature decided to provide a different, and
    perhaps more stringent, procedure for protecting them than it decided was
    necessary for other items of cultural heritage value or interest. None of this
    should be allowed to distort the interpretative process, however. There is no
    need, or principle, that requires a statutory interpretation to be arrived at
    in order to shoe-horn a given factual situation into one section or the other.
    That is particularly so when the ultimate objective of those efforts is to
    promote private interests over public ones, which is itself contrary to the
    overriding purpose of the
OHA
in seeking to preserve property of
    cultural or heritage value or interest for the benefit of the public at large.
    Indeed, it is not clear to me why my colleague wishes to adopt what I
    characterize as a strained interpretation of the word structure simply to
    give a private party a leg-up over the public interest.

[128]

Third is the effect of
    what Clublink plans to do with Glen Abbey. Clublink plans to eliminate the very
    facets of Glen Abbey that gives Glen Abbey its cultural heritage value. Those
    attributes are detailed in Schedule B to the by-law passed by the Town that
    designated Glen Abbey and surrounding property to be of cultural heritage value
    or interest under s. 29 of the
OHA
. Section 33 expressly captures
    situations where a property owner proposes to alter or change its property and
    the alteration is likely to affect the propertys heritage attributes. There
    is no similar requirement in s. 34. Consequently, s. 33 has a more direct and
    immediate connection to the effect of Clublinks plans than does s. 34. I do
    not see how that reality provides any support for my colleagues conclusion as
    she purports to have it do at para. 81.

[129]

Further, given that
    the overarching purpose of the
OHA
is to protect Ontarios heritage,
    it makes sense that the municipality is to have the final say on an
    alteration that will affect the propertys cultural heritage value. By
    contrast, since s. 34 applies to any building or structure on the designated
    property  irrespective of whether that structure contributes to the propertys
    cultural heritage value  it makes sense to provide the property owner greater
    procedural protections. These latter protections will guard against the risk
    that a municipality might interfere with private property rights in a manner
    that does not actually further the preservation of Ontarios heritage.

[130]

There is another
    reason to draw this distinction. If a building or structure has cultural
    heritage value or interest, and it is demolished, then nothing remains to
    remind anyone of that prior cultural heritage value or interest. It is simply
    gone. However, a property that has cultural heritage value or interest bound up
    in the land itself remains, even if the aspects of it that gave it cultural
    heritage value or interest are changed. The property remains. It cannot be
    eliminated. And the property owner retains the value inherent in that land.

[131]

Fourth is the ultimate
    consequence of Clublinks plans. One can assume that the Town will refuse
    permission, under s. 34, for Clublink to do that which it wishes to do. For the
    Town to do otherwise would be entirely inconsistent with its position as to the
    cultural heritage value of Glen Abbey. If that occurs and Clublink appeals, the
    Local Planning Appeal Tribunal can reverse the Towns decision and order the
    Town to consent to the demolition or removal of a building or structure. If
    that order is made with respect to Glen Abbey, then the Town is required, under
    s. 34.3, to pass a by-law to repeal a by-law or the part thereof designating a
    property under section 29. In other words, through this process, Clublink
    obtains a repeal of the designating by-law without any direct challenge to the
    designating by-law.

[132]

I repeat that, for the
    purposes of this appeal, Clublink did not make any formal objection to the
    passing of the designating by-law nor raise any direct challenge to it. I note
    that, even if Clublink had done so, any appeal would be to the Conservation
    Review Board and would be non-binding on the municipality. Given the ultimate
    result that may flow from the procedure under s. 34 for heritage purposes, that
    is the complete reversal of the heritage designation, there is even more need
    to ensure that the section only applies to those situations that clearly fall
    within its scope. My colleague says that it made practical sense for Clublink
    to forgo a direct challenge to the designation through its attempt to shelter
    its goals through its s. 34 application. With respect, it makes practical sense
    for Clublink to do so only if Clublink is permitted, as my colleague would
    allow it, to do indirectly what it chose not to do directly. And in the process
    to invoke an entirely different appeal route  a factor that my colleague
    otherwise relies on to support her conclusion.

[133]

Fifth, to the degree
    that meanings given to the word structure outside the
OHA
have any
    relevance to this interpretative exercise, a golf course does not fit
    comfortably with the common understanding of the word. For example, The
Concise
    Oxford English Dictionary
, 12th ed. (New York: Oxford University Press,
    2011), at p. 1431, defines structure as a building or other object
    constructed from several parts.

[134]

It also follows, on
    this point, that the use of the word structure in association with the word
    building in s. 34 suggests a similarity of intended meaning for the two
    terms. It suggests that structure was intended to capture other man-made
    objects not encompassed within the term building such as, for example, a
    bridge.

[135]

I earlier eschewed
    placing undue reliance on interpretations of the word structure reached by
    other courts in other cases dealing with other statutes. I will permit myself
    one reference, however, only to show that I am not alone in my interpretation
    of the word structure as it relates to golf courses. In interpreting the same
    word when used in an insurance policy in
J.M.D.S. Services Inc. v.
    Prudential Assurance Co. of England Property & Casualty (Canada)
, [1998]
    1 W.W.R. 451 (Man. Q.B.), Darichuk J. said, at para. 7:

Absent such an assigned meaning,
    within the context of the insurance policy, this word should receive its
    ordinary, popular meaning of being an edifice or building of some kind, built
    or constructed on, above or below the surface of the land  not the golf course
    itself or the trees, shrubs, flowers or plants growing thereon.
[6]

[136]

Before leaving this
    point, I will say that I am aware that s. 47 of the
OHA
defines
    property as real property, but does not include buildings or structures
    other than ruins, burial mounds, petroglyphs and earthworks. This definition
    could be said, albeit very obliquely, to suggest that structures include land,
    e.g., burial mounds and earthworks. Indeed, my colleague places considerable
    reliance on the use of the word earthworks in defence of her conclusion.

[137]

I make two
    observations in response to that reliance. One is that this definition appears
    in Part VI of the
OHA
, not in Part IV where ss. 33 and 34 are found.
    Part VI deals with conservation of resources of archaeological value, an
    entirely different concern than Part IV addresses. The other is that the
    inclusion of this definition in Part VI demonstrates that the Legislature was
    capable of defining structure expressly, and in a specific way, when it wished
    to do so for a particular purpose. It clearly did not feel it necessary to do
    so for the purpose of Part IV but rather chose to leave the word to its
    ordinary meaning within the context of that Part of the statute. One cannot, in
    my view, use the separate definition of property in Part VI to alter the
    definition of property in Part IV when it is clear that the Legislature adopted
    separate and distinct definitions for separate and distinct purposes.

[138]

Sixth, and finally, to
    uphold the application judges decision and order would not further the purpose
    and goals of the
OHA
. If a golf course is a structure for the
    purpose of s. 34 of the
OHA
because it is constructed there is no
    immediately apparent limit to what types of objects, items, landscapes, or
    features could be qualified as structures. It would seriously circumscribe
    the application of s. 33 in favour of a correspondingly expansive, and largely
    unfettered, right in the owners of heritage properties under s. 34, from a
    practical point of view, to deal with their property without reference to the
    effect on the propertys heritage attributes. It would leave s. 33 with a very
    limited meaning. Indeed, from a practical point of view, it would leave s. 33
    with very little real-world application and thus be contrary to the wide and
    liberal interpretation urged by Cory J.A. in
Toronto College Street Centre
.

[139]

In the end result, the
    very nature of Glen Abbey does not permit it to be properly characterized as a
    structure within the meaning of s. 34. Any contrary conclusion does not accord
    with common sense. Rather, approached sensibly, Glen Abbey is a component of a
    designated property that Clublink seeks to alter in a profound way that is likely
    to affect the propertys heritage attributes. That intention falls squarely
    within the terms of s. 33. Accordingly, if Clublink wishes to obtain permission
    to proceed as it plans, then it must seek the permission of the Town to do so
    under s. 33 of the
OHA
.

Conclusion

[140]

I would allow the
    appeal and set aside the order below, with costs of the appeal to the Town
    fixed in the agreed amount of $35,000, plus disbursements and HST. The parties
    have advised us that they have agreed on the appropriate disposition of the
    costs of the original application.

Released: October 23, 2019

DD

I.V.B.
    Nordheimer J.A.

App
endix A

Key Statutory Provisions

Ontario Heritage Act
, R.S.O. 1990, c.
    O. 18

Definitions

1 In this Act,

alter
    means to change in any manner and includes to restore, renovate, repair or
    disturb and alteration has a corresponding meaning; (transformer,
    transformation)

building
    permit means a building permit issued under section 8 of the Building Code
    Act, 1992; (permis de construire)

donation
    includes any gift, testamentary disposition, deed or trust or other form of
    contribution; (don)

heritage
    attributes means, in relation to real property, and to the buildings and
    structures on the real property, the attributes of the property, buildings and
    structures that contribute to their cultural heritage value or interest;
    (attributs patrimoniaux)

inspect
    includes to survey, photograph, measure and record; (inspecter)

licence
    means a licence issued under this Act; (licence)

Minister
    means the member of the Executive Council to whom the administration of this
    Act is assigned by the Lieutenant Governor in Council; (ministre)

municipality
    means a local municipality and includes a band under the Indian Act (Canada)
    that is permitted to control, manage and expend its revenue money under section
    69 of that Act; (municipalité)

owner
    means the person registered on title in the proper land registry office as
    owner; (propriétaire)

permit
    means a permit issued under this Act; (permis)

person
    includes a municipality; (personne)

regulations
    means the regulations made under this Act; (règlements)

Review
    Board means the Conservation Review Board; (Commission de révision)

Tribunal
    means the Local Planning Appeal Tribunal; (Tribunal)

Trust
    means the Ontario Heritage Trust continued under section 5. (Fiducie)  R.S.O.
    1990, c. O.18, s. 1; 1993, c. 27, Sched.; 2002, c. 17, Sched. F, Table; 2002,
    c. 18, Sched. F, s. 2 (1, 2); 2005, c. 6, s. 2; 2017, c. 23, Sched. 5, s. 61.

PART IV

CONSERVATION OF PROPERTY OF CULTURAL HERITAGE VALUE OR
    INTEREST

Definition

26
    (1) In this Part,

property means real property and includes all buildings
    and structures thereon. 2005, c. 6, s. 14.

Same

(2)
    In sections 27 to 34.4,

designated property means property designated by a
    municipality under section 29. 2005, c. 6, s. 14.

Designation
    by municipal by-law

29
    (1) The council of a municipality may, by by-law, designate a property within
    the municipality to be of cultural heritage value or interest if,

(a) where criteria for determining whether property is of
    cultural heritage value or interest have been prescribed by regulation, the
    property meets the prescribed criteria; and

(b) the designation is made in accordance with the process
    set out in this section. 2005, c. 6, s. 17 (1).

Notice
    required

(1.1)
    Subject to subsection (2), if the council of a municipality intends to
    designate a property within the municipality to be of cultural heritage value
    or interest, it shall cause notice of intention to designate the property to be
    given by the clerk of the municipality in accordance with subsection (3). 2005,
    c. 6, s. 17 (1).

Consultation

(2)
    Where the council of a municipality has appointed a municipal heritage
    committee, the council shall, before giving notice of its intention to
    designate a property under subsection (1), consult with its municipal heritage
    committee. R.S.O. 1990, c. O.18, s. 29 (2); 2002, c. 18, Sched. F, s. 2 (9).

Notice
    of intention

(3)
    Notice of intention to designate under subsection (1) shall be,

(a) served on the owner of the property and on the Trust;
    and

(b) published in a newspaper having general circulation in
    the municipality. R.S.O. 1990, c. O.18, s. 29 (3); 2005. c. 6. s. 1.

Contents
    of notice

(4)
    Notice of intention to designate property that is served on the owner of
    property and on the Trust under clause (3) (a) shall contain,

(a) an adequate description of the property so that it may
    be readily ascertained;

(b) a statement explaining the cultural heritage value or
    interest of the property and a description of the heritage attributes of the
    property; and

(c) a statement that notice of objection to the designation
    may be served on the clerk within 30 days after the date of publication of the
    notice of intention in a newspaper of general circulation in the municipality
    under clause (3) (b). 2005, c. 6, s. 17 (2).

Same

(4.1)
    Notice of intention to designate property that is published in a newspaper of
    general circulation in a municipality under clause (3) (b) shall contain,

(a) an adequate description of the property so that it may
    be readily ascertained;

(b) a statement explaining the cultural heritage value or
    interest of the property;

(c) a statement that further information respecting the
    proposed designation is available from the municipality; and

(d) a statement that notice of objection to the designation
    may be served on the clerk within 30 days after the date of publication of the
    notice of intention in a newspaper of general circulation in the municipality
    under clause (3) (b). 2005, c. 6, s. 17 (2).

Objection

(5) A
    person who objects to a proposed designation shall, within thirty days after
    the date of publication of the notice of intention, serve on the clerk of the
    municipality a notice of objection setting out the reason for the objection and
    all relevant facts. R.S.O. 1990, c. O.18, s. 29 (5); 1996, c. 4, s. 55 (2);
    2009, c. 33, Sched. 11, s. 6 (4).

If
    no notice of objection

(6)
    If no notice of objection is served within the 30-day period under subsection
    (5), the council,

(a) shall,

(i) pass a by-law designating the property,

(ii) cause a copy of the by-law, together with a statement
    explaining the cultural heritage value or interest of the property and a
    description of the heritage attributes of the property,

(A) to be served on the owner of the property and on the
    Trust, and

(B) to be registered against the property affected in the
    proper land registry office, and

(iii) publish notice of the by-law in a newspaper having
    general circulation in the municipality; or

(b) shall withdraw the notice of intention to designate the
    property by causing a notice of withdrawal,

(i) to be served on the owner of the property and on the
    Trust, and

(ii) to be published in a newspaper having general
    circulation in the municipality. 2002, c. 18, Sched. F, s. 2 (11); 2005, c. 6,
    ss. 1, 17 (3).

Referral
    to Review Board

(7)
    Where a notice of objection has been served under subsection (5), the council
    shall, upon expiration of the thirty-day period under subsection (4), refer the
    matter to the Review Board for a hearing and report. R.S.O. 1990, c. O.18, s.
    29 (7).

Hearing

(8)
    Pursuant to a reference by the council under subsection (7), the Review Board,
    as soon as is practicable, shall hold a hearing open to the public to determine
    whether the property in question should be designated, and the council, the
    owner, any person who has filed an objection under subsection (5) and such
    other persons as the Review Board may specify, are parties to the hearing. R.S.O.
    1990, c. O.18, s. 29 (8).

Place
    of hearing

(9) A
    hearing under subsection (8) shall be held at such place in the municipality as
    the Review Board may determine, and notice of such hearing shall be published
    in a newspaper having general circulation in the municipality at least ten days
    prior to the date of such hearing. R.S.O. 1990, c. O.18, s. 29 (9).

Review
    Board may combine hearings

(10)
    The Review Board may combine two or more related hearings and conduct them in
    all respects and for all purposes as one hearing. R.S.O. 1990, c. O.18, s. 29
    (10).

Report

(12)
    Within thirty days after the conclusion of a hearing under subsection (8), the
    Review Board shall make a report to the council setting out its findings of
    fact, its recommendations as to whether or not the property should be
    designated under this Part and any information or knowledge used by it in
    reaching its recommendations, and the Review Board shall send a copy of its
    report to the other parties to the hearing. R.S.O. 1990, c. O.18, s. 29 (12).

Failure
    to report

(13)
    Where the Review Board fails to make a report within the time limited by
    subsection (12), such failure does not invalidate the procedure. R.S.O. 1990,
    c. O.18, s. 29 (13).

Decision
    of council

(14) After
    considering the report under subsection (12), the council, without a further
    hearing,

(a) shall,

(i) pass a by-law designating the property,

(ii) cause a copy of the by-law, together with a statement
    explaining the cultural heritage value or interest of the property and a
    description of the heritage attributes of the property,

(A) to be served on the owner of the property and on the
    Trust, and

(B) to be registered against the property affected in the
    proper land registry office, and

(iii) publish notice of the by-law in a newspaper having
    general circulation in the municipality; or

(b) shall withdraw the notice of intention to designate the
    property by causing a notice of withdrawal,

(i) to be served on the owner of the property and on the
    Trust, and

(ii) to be published in a newspaper having general
    circulation in the municipality. 2002, c. 18, Sched. F, s. 2 (12); 2005, c. 6,
    ss. 1, 17 (5).

Decision
    final

(14.1)
    The decision of the council under subsection (14) is final. 2002, c. 18, Sched.
    F, s. 2 (12).

Withdrawal
    of objection

(15)
    A person who has served a notice of objection under subsection (5) may withdraw
    the objection at any time before the conclusion of a hearing into the matter by
    serving a notice of withdrawal on the clerk of the municipality and on the
    Review Board. 2009, c. 33, Sched. 11, s. 6 (5).

Alteration
    of property

33
    (1) No owner of property designated under section 29 shall alter the property
    or permit the alteration of the property if the alteration is likely to affect
    the propertys heritage attributes, as set out in the description of the
    propertys heritage attributes that was required to be served and registered
    under subsection 29 (6) or (14), as the case may be, unless the owner applies
    to the council of the municipality in which the property is situate and
    receives consent in writing to the alteration. 2002, c. 18, Sched. F, s. 2
    (16); 2005, c. 6, s. 21 (1).

Transition

(1.1)
    If property is designated under this Part as property of historic or
    architectural value or interest, either before the day section 29 of this Act
    is amended by section 2 of Schedule F to the Government Efficiency Act, 2002 or
    under subsection 29 (16) of this Act after that day,

(a) subsection (1) of this section does not apply to the
    property;

(b) despite its amendment by subsection 2 (16) of Schedule
    F to the Government Efficiency Act, 2002, subsection (1) of this section, as it
    read immediately before the day subsection 2 (16) of Schedule F to the
    Government Efficiency Act, 2002 came into force, continues to apply to the
    property. 2002, c. 18, Sched. F, s. 2 (16).

Application

(2)
    An application under subsection (1) shall be accompanied by a detailed plan and
    shall set out such information as the council may require. R.S.O. 1990, c.
    O.18, s. 33 (2).

Notice
    of receipt

(3)
    The council, upon receipt of an application under subsection (1) together with
    such information as it may require under subsection (2), shall cause a notice
    of receipt to be served on the applicant. R.S.O. 1990, c. O.18, s. 33 (3).

Decision
    of council

(4)
    Within 90 days after the notice of receipt is served on the applicant under
    subsection (3), the council, after consultation with its municipal heritage
    committee, if one is established,

(a) shall,

(i) consent to the application,

(ii) consent to the application on terms and conditions, or

(iii) refuse the application; and

(b) shall give notice of its decision to the owner of the
    property and to the Trust. 2002, c. 18, Sched. F, s. 2 (17); 2005, c. 6, s. 1.

Extension
    of time

(5)
    The applicant and the council may agree to extend the time under subsection (4)
    and, where the council fails to notify the applicant of its decision within
    ninety days after the notice of receipt is served on the applicant or within
    such extended time as may be agreed upon, the council shall be deemed to have
    consented to the application. R.S.O. 1990, c. O.18, s. 33 (5).

Application
    for hearing

(6)
    Where the council consents to an application upon certain terms and conditions
    or refuses the application, the owner may, within thirty days after receipt of
    the notice under subsection (4), apply to the council for a hearing before the
    Review Board. R.S.O. 1990, c. O.18, s. 33 (6).

Referral
    to Review Board

(7)
    The council shall, upon receipt of a notice under subsection (6), refer the
    matter to the Review Board for a hearing and report, and shall publish a notice
    of the hearing in a newspaper having general circulation in the municipality,
    at least ten days prior to the date of such hearing. R.S.O. 1990, c. O.18, s.
    33 (7).

Hearing

(8)
    The Review Board shall as soon as is practicable hold a hearing open to the
    public to review the application, and the council and the owner and such other
    persons as the Review Board may specify are parties to the hearing. R.S.O.
    1990, c. O.18, s. 33 (8).

Place
    for hearing

(9) A
    hearing under subsection (8) shall be held at such place in the municipality as
    the Review Board may determine. R.S.O. 1990, c. O.18, s. 33 (9).

(10)
    Repealed:  2005, c. 6, s. 21 (2).

Report

(11)
    Within thirty days after the conclusion of a hearing under subsection (8), the
    Review Board shall make a report to the council setting out its findings of
    fact, its recommendations as to whether or not the application should be
    approved, and any information or knowledge used by it in reaching its
    recommendations, and shall send a copy of its report to the other parties to the
    hearing. R.S.O. 1990, c. O.18, s. 33 (11).

Failure
    to report

(12)
    Where the Review Board fails to make a report within the time limited by
    subsection (11), the failure does not invalidate the procedure. R.S.O. 1990, c.
    O.18, s. 33 (12).

Decision
    of council

(13)
    After considering the report under subsection (11), the council without a
    further hearing shall confirm or revise its decision under subsection (4) with
    such modifications as the council considers proper and shall cause notice of
    its decision to be served on the owner and the Trust and to the other parties
    to the hearing, and its decision is final. R.S.O. 1990, c. O.18, s. 33 (13);
    2005, c. 6. s. 1.

Withdrawal
    of application

(14)
    The owner may withdraw an application made under subsection (6) at any time
    before the conclusion of a hearing into the matter by serving a notice of
    withdrawal on the clerk of the municipality and on the Review Board and, upon
    receipt of the notice of withdrawal, the Review Board shall not hold a hearing
    into the matter or, if a hearing into the matter is in progress, shall
    discontinue the hearing and the council shall act in accordance with subsection
    (4) as if no application had been made under subsection (6). 1996, c. 4, s. 58.

Delegation
    of councils consent

(15)
    The power to consent to alterations to property under this section may be
    delegated by by-law by the council of a municipality to an employee or official
    of the municipality if the council has established a municipal heritage
    committee and has consulted with the committee prior to delegating the power. 2005,
    c. 6, s. 21 (3).

Scope
    of delegation

(16)
    A by-law that delegates the councils power to consent to alterations to a
    municipal employee or official may delegate the power with respect to all alterations
    or with respect to such classes of alterations as are described in the by-law. 2005,
    c. 6, s. 21 (3).

Demolition
    or removal of structure

34
    (1) No owner of property designated under section 29 shall demolish or remove a
    building or structure on the property or permit the demolition or removal of a
    building or structure on the property unless the owner applies to the council
    of the municipality in which the property is situate and receives consent in
    writing to the demolition or removal. 2002, c. 18, Sched. F, s. 2 (18); 2005,
    c. 6, s. 22 (1).

Application

(1.1)
    An application made under subsection (1) shall be accompanied by any plans and
    set out any information the council may require. 2009, c. 33, Sched. 11, s. 6
    (9).

Notice
    of receipt

(1.2)
    The council, on receipt of an application under subsection (1) together with
    any information it may require under subsection (1.1), shall serve a notice of
    receipt on the applicant. 2009, c. 33, Sched. 11, s. 6 (9)

Decision
    of council

(2) Within
    90 days after the notice of receipt is served on the applicant under subsection
    (1.2) or within such longer period as is agreed upon by the owner and the
    council, the council, after consultation with its municipal heritage committee,
    if one is established,

(a) may,

(i) consent to the application,

(i.1) consent to the application, subject to such terms and
    conditions as may be specified by the council, or

(ii) refuse the application;

(b) shall give notice of its decision to the owner and to
    the Trust; and

(c) shall publish its decision in a newspaper having
    general circulation in the municipality. 2002, c. 18, Sched. F, s. 2 (18);
    2005, c. 6, ss. 1, 22 (2); 2009, c. 33, Sched. 11, s. 6 (10).

(3)
    Repealed:  2005, c. 6, s. 22 (3).

Deemed
    consent

(4)
    If the council fails to notify the owner under clause (2) (b) within the time
    period mentioned in subsection (2), the council shall be deemed to have
    consented to the application. 2002, c. 18, Sched. F, s. 2 (18).

Appeal
    to Tribunal

34.1 (1)
    If the council of a municipality consents to an application subject to terms
    and conditions under subclause 34 (2) (a) (i.1) or refuses an application under
    subclause 34 (2) (a) (ii), the owner of the property that was the subject of
    the application may appeal the councils decision to the Tribunal within 30
    days of the day the owner received notice of the councils decision. 2017, c.
    23, Sched. 5, s. 64.

Notice
    of appeal

(2)
    An owner of property who wishes to appeal the decision of the council of a municipality
    shall, within 30 days of the day the owner received notice of the councils
    decision, give notice of appeal to the Tribunal and to the clerk of the
    municipality. 2017, c. 23, Sched. 5, s. 64.

Content
    of notice

(3) A
    notice of appeal shall set out the reasons for the objection to the decision of
    the council of the municipality and be accompanied by the fee charged under the
    Local Planning Appeal Tribunal Act, 2017. 2017, c. 23, Sched. 5, s. 64.

Hearing

(4)
    Upon receiving notice of an appeal, the Tribunal shall set a time and place for
    hearing the appeal and give notice of the hearing to the owner of the property
    and to such other persons or bodies as the Tribunal may determine. 2017, c. 23,
    Sched. 5, s. 64.

Notice
    of hearing

(5)
    The Tribunal shall give notice of a hearing in such manner as the Tribunal
    determines necessary. 2017, c. 23, Sched. 5, s. 64.

Powers
    of Tribunal

(6)
    After holding a hearing, the Tribunal may order,

(a) that the appeal be dismissed; or

(b) that the municipality consent to the demolition or
    removal of a building or structure without terms and conditions or with such
    terms and conditions as the Tribunal may specify in the order. 2017, c. 23,
    Sched. 5, s. 64.

Decision
    final

(7)
    The decision of the Tribunal is final. 2017, c. 23, Sched. 5, s. 64.

Repeal
    of by-law designating property

34.3
    (1) The council of a municipality shall pass a by-law to repeal a by-law or the
    part thereof designating a property under section 29 if the owner of the property
    has applied in writing to the council for consent to the demolition or removal
    of a building or structure on the property and,

(a) the council consents to the application under subclause
    34 (2) (a) (i) or (i.1) or is deemed to have consented to the application under
    subsection 34 (4); or

(b) the Tribunal has ordered that the municipality give its
    consent under clause 34.1 (6) (b). 2005, c. 6, s. 24; 2017, c. 23, Sched. 5, s.
    62.

Duties
    upon passing a repealing by-law

(2)
    When the council passes a repealing by-law under this section, the council
    shall cause,

(a) a copy of the repealing by-law to be served on the
    owner of the property and on the Trust;

(b) notice of the repealing by-law to be published in a
    newspaper having general circulation in the municipality;

(c) reference to the property to be deleted from the
    Register referred to in subsection 27 (1); and

(d) a copy of the repealing by-law to be registered against
    the property affected in the proper land registry office. 2002, c. 18, Sched.
    F, s. 2 (18); 2005, c. 6, s. 1.

PART VI

CONSERVATION OF RESOURCES OF ARCHAEOLOGICAL VALUE

Definitions,

47 In
    this Part,

designated property means property that is designated by
    the Minister under this Part; (bien désigné)

property means real property, but does not include
    buildings or structures other than ruins, burial mounds, petroglyphs and
    earthworks. (bien)  R.S.O. 1990, c. O.18, s. 47.

[1]

The only caveat is with respect to the application judges
    order that Town process Clublinks s. 34 application. The parties agree that
    the application judge erred in making this order, as Clublinks request for
mandamus
had been withdrawn on consent.

[2]

An application to quash the by-law designating the property
    under s. 29 of the
OHA
was commenced by Clublink in December 2018 before
    the Superior Court of Justice.

[3]

The text of the key provisions of the
OHA
implicated in
    this appeal are reproduced at Appendix A.

[4]

The nomenclature of historic or architectural value or
    interest was amended in 2002 to refer a property of cultural heritage value
    or interest: see
Government Efficiency Act
, S.O. 2002, c. 18, s. 2(8).

[5]
Contrary to the assertion of my colleague at para. 4 of her reasons, I do not
    say that the different routes of appeal do not assist in resolving the issue.
    Rather, I say that the application judge placed too much emphasis on that
    aspect in his analysis.

[6]

See also

Hampton Golf Club
    Ltd. v. Minister of National Revenue,

[1986] 2 C.T.C. 403
    (Fed. Ct.), at para. 29.