Effect of City Delay in Permit Applications under the Heritage Act

In a recent Ontario decision, later confirmed by the  Ontario Court of Appeal, the lower court held that the City’s delay in making  a decision on a demolition permit application under the Heritage Act  did not amount to acquiescence, nor did it invalidate the City’s eventual  permit refusal on the merits of the application itself.

The owner of a heritage property had applied to  the City of Toronto for a demolition permit.  The City failed to reply to  the owner’s application within the 90-limit, and ultimately issued a formal  refusal about two weeks later.  However, even after the deadline had  expired, the owner and the City had been exchanging additional information  needed by the City to make its decision, and the owner continued to ask about  when that decision would be made.

In these circumstances, the court held that the City  was aware of the properly-filed demolition permit application, and by its  conduct was clearly not intending to strictly comply with the 90-day time  limit. However, this did not mean that the City consent could therefore be  assumed: simply because it failed to respond within the deadline, this did not  mean the City was deemed to have approved the application.  Indeed, the  court found that there was essentially an agreement between the owner and the  City to extend the decision period, and that the City’s subsequent refusal of  the demolition permit application was a valid one. The owner’s subsequent  appeal was dismissed; the Court of Appeal pointed out that the owner had  essentially shown a willingness to wait for the City’s decision even past the  deadline, and to abide by the outcome. See ADMNS Kelvingrove Investment  Corp. v. Toronto (City), 2009 (ON C.A.).