Court says province has to hold off on demolition of heritage buildings at Toronto's Foundry site

TORONTO -- An Ontario judge has ruled that the province cannot proceed with the demolition of a group of heritage buildings in Toronto’s West Don Lands pending a decision next month.

“Friends of the Foundry are very relieved that today’s decision by J. Corbett of the Ontario Divisional Court will protect the Dominion Foundry buildings from further damage at least until a full hearing at the end of February,” community group Friends of the Foundry said in a statement Friday evening.

The buildings at 153-185 Eastern Avenue are on the former site of the Dominion Wheel and Foundries Company (known locally as the Foundry site).

They are owned by the Province of Ontario but have been designated heritage properties since 2004.

In October, the province quietly issued a ministerial zoning order for the site, a power that allows the housing minister to override heritage laws as well as local planning regulations when the province deems it necessary.

In Friday’s decision, the judge ruled that the demolition is “in contravention of the Heritage Act, and in breach of Ontario’s obligations under a subdivision agreement between Ontario and the City of Toronto.”

“Infrastructure Ontario decided to demolish the heritage buildings without first providing a Heritage Assessment Report to Toronto in accordance with the subdivision agreement, did not disclose publicly its intention to demolish the buildings, did not disclose publicly the Heritage Assessment Report written by one of its employees, and did not undertake any “public engagement” respecting demolition of the buildings,” the judge wrote.

The judge did note that the events likely happened by mistake and that the province did not deliberately flout the Act and its contractual obligations.

The judge wrote, “someone responsible for the process leading to a decision to demolish the buildings simply forgot or overlooked the requirements that must be followed for heritage buildings. The record before me did not make it clear how this mistake was made.”

Community members who say they have long-tried to engage the province about possible creative uses for the site, only learned about the demolition from someone who happened to be walking by about two weeks ago and noticed construction equipment.

Last week, Municipal Affairs and Housing Minister Steve Clark said he would pause demolition as a "good faith" gesture pending a legal challenge on the properties.

Clark said the province needs to tear down the building so that it can put up affordable housing on the site.

However, Councillor Kristyn Wong-Tam, who represents the area, said she has recently learned from the city planning department that just 30 per cent of one of three planned towers for the site will be set aside for affordable housing. The rest, according to Wong-Tam, is slated to be market-price condos.

Community activists have also questioned why the heritage properties cannot be incorporated into any new structure on the site.

In a statement Friday, Clark ‘s office called the judge’s decision “disappointing.”

“As we’ve stated, a Heritage Impact Assessment was completed, which determined that the buildings require demolition to facilitate full environmental remediation of the site,” the statement read. “We had paused demolition as a good faith gesture towards the City. It is disappointing that the City of Toronto is slowing down environmental remediation, and the construction of new much-needed affordable housing and community space in the West Don Lands.”

However, local activists praised the decision.

“The interim order validates the decision of the St. Lawrence Neighbourhood Association to bring the defence of our built heritage to the Court on behalf of the community” SLNA Development Committee Chair Suzanne Kavanagh said in a statement. “But the burden on our association is tremendous.”

The group has had to raise funds online for the legal challenge, but has managed to collect $21,000 so far.

While she is pleased with the decision, Wong-Tam said the fight is not over.

“While the demolition has been halted on an emergency basis, the next step is to properly have our concerns about these heritage buildings heard by a panel of judges at the Divisional Court,” the councillor said in a statement.

“Our requests to the premier and the Ontario government remain the same - immediately stop all demolition and begin consultation with the community and City to jointly determine the future of the Dominion Foundry Complex.”

In a statement, Mayor John Tory said he hopes the decision can pave the way for the province to work with the community.

“It is my hope that we can use this time to resolve this situation with the Government of Ontario,” Tory said. “I believe a path forward can be found that gets more affordable housing built and at the same time addresses community concerns around heritage and public consultation. I want to thank the community for standing with the City to help protect this site."

Ahead of the decision, community members turned out at the site Friday afternoon with signs and placards calling the province’s plan “an abuse of power.”