Slicing a piece off Osgoode Hall site like drawing a cartoon in the corner of a masterpiece: expert

In addition to the law society and Metrolinx battling it out in court, two other parties have also asked for intervenor status – The Grange Community Association and an Indigenous group called the Haudenosaunee Development Institute. They also have issues with the Metrolinx plan. The Indigenous group is also bringing forward its own application for injunctive relief.

The hearing was to continue Friday, just hours before the interim injunction deadline, after the judge and lawyers agreed there was too much material to deal with the matter in one afternoon. The law society presented its arguments Thursday, with Metrolinx set to make its case Friday. The court will also look on Friday at the matter of those seeking intervenor status and the HDI injunction request.

“There is no question that the proposed use for the expropriated land will have a significant adverse heritage impact on the attributes located on the un-expropriated land,” writes architect Borgal in a letter filed with the court as part of the full hearing on whether Metrolinx can cut down the trees.

Osgoode Hall site “indivisible” from a heritage perspective

Central to the LSO’s case to spare the trees is whether the Osgoode Hall buildings and grounds can be seen as an “indivisible site,” even though it has multiple owners. One of the owners is Metrolinx, which was allowed by the province to expropriate the southwest portion of the Osgoode Hall grounds to build the transit stop.

Borgal’s letter says that, among other things, the proposed entrance “will block the view of Osgoode Hall from the corner of University Avenue and Queen Street, see the removal of several mature trees of various species, reconfigure the cast-iron fence enclosure (itself, is an important heritage artifact), and introduce a design element to the original grounds that is “at odds with the aesthetics” of the original building and site.

“We’re dealing here with a very unique situation in which we have multiple ownership of a heritage site,” said Michael Fenrick, a lawyer for the LSO, at an injunction hearing on Saturday. “What happens on one part of the land is inevitably going to impact what happens to the balance of the property and its heritage attributes.”

Fenrick said the society has also applied to Toronto’s city council under s. 33 of the Ontario Heritage Act, which says no property owner can alter the property if it is likely to affect the property’s heritage attributes. The LSO also argues that it has the right to restrict Metrolinx’s use of its property because both are owners of an indivisible heritage site.

Among the reasons for granting the interim injunction was to give the law society more time to have Borgal provide expert opinion on the “divisibility” of Osgoode Hall and the impact on what is a designated heritage site.

In Borgal’s opinion, the answer is that it can’t be parcelled out without hurting the integrity of the site as a whole.

Osgoode Hall is more than an old building

“Osgoode Hall is more than an old building or a green park in the centre of the city,” says Borgal in his letter. “Because of its historical associations and untouched landscape over a considerable length of time, it is a symbol of the early settlement of Toronto; a remaining untouched tract of land in the City trod by our aboriginal forebears; a homage to the quality of aspirations of society for the rule of law in Ontario; and of the equitable application of those laws today.”

He adds, "from the latter standpoint alone, it should be held to be sacred in the civil realm and owed due consideration for its importance as a landmark.”

Borgal says that in his opinion as an architect, “a considerable amount of additional design work must be completed that, although a compromise, will better meet the objectives of all parties to this issue.”

While this may change the timeline for completion of this portion of the Ontario Line and potentially cost more, Borgal writes that “the additional cost would be an investment in one of the most important cultural assets in Ontario.”

In addition, Borgal says the lack of “adequate consideration” for the importance of this heritage site will cause, in my opinion, permanent damage to one of the most historic sites in Canada that has been a symbol of justice in Ontario for almost 200 years.”

The dispute over the trees at Osgoode Hall - which is home to the LSO and the Ontario Court of Appeal - began last spring when the possibility that the trees would be cut down was revealed. Since then, lawyers, professors and judges have voiced concerns over the Metrolinx plans, with critics saying that the transport agency was short-circuiting the process to which it had agreed.

Metrolinx says it has received all necessary approvals

For its part, Metrolinx says it has been engaging with communities on this project for over two years, including meeting with the LSO 17 times before the start of work on the Ontario Line.

Lawyers for Metrolinx argued that the agency has done all the necessary outreach and consultations in the “very challenging” context of expropriation and that Metrolinx asked for and received all the necessary approvals, including expropriation of that corner of University Avenue and Queen Street.

Justice Chalmers wrote in his reasons for judgment that he “has some concerns” about whether the indivisible heritage site argument will prevail. He noted that Metrolinx argues it is a public body and is not governed by this section but by a different part of the act with which the agency has complied.

However, Justice Chalmers added, “I am of the view that the LSO should be given an opportunity to advance its argument that s. 33 of the act applies to an indivisible heritage site with multiple owners.”

Making the case for an alternative location for the transit pavilion

The judge also wrote that the LSO should have the opportunity to consider a report from Parsons Corp., a U.S.-based infrastructure engineering firm, just released on Saturday. It says that Metrolinx’s preferred location for the entrance spot is the most appropriate but that the Campbell House site across University Ave. could also be an alternative.

The Parsons Report examined ten areas near the University-Queen intersection, including Osgoode Hall, Osgoode Plaza, the Canada Life Building, the Bank of Canada Building, the Four Seasons Centre and Campbell House.

It says Osgoode Hall “would appear to be the most suitable option” for the station “as it provides sufficient at-ground pedestrian and traffic flow at the critical westbound streetcar stop.” It also has a workable design for the excavation site and vertical circulation needed to connect the existing TTC Line 1 concourse level with that of the Ontario Line.

The Parsons report did suggest that Metrolinx could investigate a design for the Campbell House site because it is a “potentially feasible alternate location.” Campbell House might have to be moved, but the historic house has been moved once before from a location more than a kilometre away.

Not a civilized process

However, in Borgal’s opinion, “it is not a ‘civilized’ process” to put aside the significance of a site such as Osgoode Hall in the interests of an engineering task, with “budget and speed of execution” governing the process.

“In other major cities where undergrounds have been installed within heritage areas or among heritage sites, great care is typically taken to ensure that the engineering issues are met while also meeting the requirements of conserving important cultural context.” He added that realistic options have been provided to reduce the impact of the Ontario Line on Osgoode Hall.

“In my opinion, Ontario risks Toronto failing in its aspirations to become a great city if the current process is allowed to proceed without significant weight and attention placed on heritage issues, particularly regarding Osgoode Hall.”

This story was updated on Feb. 9, after the hearing concluded Thursday. It resumes Friday morning at 9:30 am.