Court rules in favour of Town

Andrews building designation appeal denied

AndrewsThe Court of Appeal for Ontario has upheld the Heritage designation imposed on the Andrews building on Queen Street East. The owners of the building, Lynn and Colleen Foley, had appealed the designation to the Supreme Court of Justice which was denied and then went back to court to appeal that decision. The latest decision which was issued on Monday ruled that the Foleys had one year after the designation to appeal and did not do so in that time frame. The following is taken from the court decision: In 1884, a two-storey brick and stone commercial building with a clock tower was constructed at 135 Queen Street East in St. Marys for a local jeweller.

For over a century, the building was home to the family jewellery shop. In keeping with its purpose, the shop’s interior contained walnut showcases, counters, mirrors and a tall wall clock. These interior features are stated to be original and some are referenced in an 1884 St. Marys newspaper article. In 2004, the appellants, Lynn Foley and Colleen Foley, purchased the property from the family jewellers and leased it until 2010. In the fall of 2007, the respondent, the Corporation of the Town of St. Marys (the “Town”), wrote to the appellants to introduce the possibility of a heritage designation. The Town subsequently contacted them to ask whether they had an interest in having the property designated as a heritage building, as it was unique and historic. The Town representative spoke about the heritage designation possibility with Mr. Foley, who advised that he was not interested in participating in the process. The Town later advised that they planned to proceed without the appellants’ support.

By letter dated January 4, 2008, the Town attempted to provide formal written notice to the appellants of its intention to pass a bylaw designating the building as a heritage building. Although the street address was correct, the last number in the appellants’ postal code was not (the correct number was 9 instead of 7). Despite the fact that the notice was not returned to the Town, the appellants say that they never received it.  The appellants did admit to seeing the Town’s notice of intent to designate that was published in the local media in accordance with the provisions of the Ontario Heritage Act, The Town did not receive any objections to the designation.  On February 27, 2008, the Town passed bylaw No. 14-2008, which designated the appellants’ property a heritage building. The designation included the original exterior and interior heritage attributes. The latter consisted of the walnut showcases, counters, mirrors and the wall clock. The Town wrote to the appellants on March 5, 2008 advising them of the designation. The designation was also reported in the local media, on March 8, 2008.  In August 2009, the appellants successfully applied for, and received, municipal heritage funding from the Town based on the heritage designation. In their application, the appellants noted that the property was the one building in St. Marys that had “remained virtually unchanged, both inside and out since 1884.”

The appellants again successfully applied for additional heritage funding from the Town in October 2009. In total, the appellants received $13,000 from the Town, a significant sum for St. Marys in this regard.  On December 2, 2009, the Town registered the heritage designation bylaw on title to the appellants’ property in accordance with the provisions of the OHA.  In early 2010, Mr. Foley attended a Town council meeting where he was presented with a designation plaque, which noted the building’s unique original exterior and interior features. While the building’s features were in keeping with its 19th and 20th century purpose as a jewellery store, they proved not to be so popular in June 2010, when the appellants listed the property for sale. The appellants received little interest from their listing and placed the blame on the heritage designation of the interior features.

Correspondence ensued between the appellants and the Town. On September 6, 2013, the appellants’ solicitor wrote to the Town complaining that his clients had not received the Town’s correspondence enclosing the original notice of intention to designate and that they were unaware that the Town had intended to designate items of personal property.

Ultimately, the appellants commenced court proceedings and issued a notice of application on March 30, 2015.

The appellants applied for an order quashing the bylaw for illegality and, in the alternative, severing those parts of the bylaw that purported to designate the interior features, fixtures and chattels of the building. They also sought interlocutory injunctive relief and damages for unlawful interference.  The application judge dismissed the application. Given the error in the postal code, he concluded that the Town could not meet its onus of proving that notice was properly given under s. 67 of the OHA. However, he found that the appellants had actual notice of the notice of designation and he then held that the one year limitation period in s. 273(5) of the Municipal Act, 2001 was dispositive of the application to quash. He therefore dismissed the application, including the alternative claim to quash the bylaw in part by severing all reference to the interior features from the designation. The Court of Appeal upheld the previous decision and said that for these reasons, the appeal is dismissed. The decision added that as agreed, the appellants shall pay the respondent $11,000 in costs, inclusive of disbursements and applicable tax.

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