The case of former York Regional Councillor Michael Di Biase, who was charged earlier this year with breach of trust and municipal corruption, goes to a Judicial Pre-trial at 9am on Thursday 9 January 2020.  

These "pre-trials" are designed to make better and more efficient use of Court time.

The Ontario Court of Justice in Newmarket heard today that the Crown would be presenting “lots of material” in its initial disclosure. 

I don’t doubt it.

In the spotlight

Di Biase, a former Mayor and Deputy Mayor of Vaughan, has been in the spotlight for years and was the focus of long running investigations by Integrity Commissioner, Suzanne Craig.

Di Biase was censured by his home council in Vaughan in 2015 and docked 90 days pay for improperly interfering in the tendering process. Despite this he continued to be paid his “stipend” by the ever-generous York Region where life continued as before. 

A CBC investigation tells us the Police have been looking at the circumstances surrounding the construction of Di Biase’s family cottage. The CBC says the Police 

“turned up evidence he illicitly accepted an "advantage or benefit" from one of the biggest recipients of city construction contracts”

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Can the Town’s oldest tree survive when over one third of its root system is paved over with impermeable asphalt? 

That is the $64,000 question.

In 2005 the Town designated the White Oak Tree in Botsford Street as being of historic value. Remarkably, this designation did not come with any kind of protection, the Town believing the old oak tree could look after itself. 

The tree is certainly a survivor. It has been there on Botsford Street in the heart of the old downtown for more than 200 years. The Liberty Oak was standing when Lieutenant Governor John Graves Simcoe was making his indelible mark on Ontario. (Photo: right)

Starved of nutrients

In May this year the owner of a neighbouring property at 443 Timothy Street paved over his yard right up to the boundary fence, inches away from the old tree. He wanted to provide parking for his apartment building, not realising that this would dramatically reduce the moisture and nutrients absorbed by the old oak tree. 

And that’s where things currently stand. Everyone expresses concern but what exactly has happened after five months?

To be fair, the Town has ensured the tree has been sporadically watered and fertilised but the impenetrable asphalt carapace is still there, smothering the roots. 

Emergency Powers

If I were Master of the Universe I would invoke emergency powers and dig up the paving. I’d put down honeycombed mats to allow rain and nutrients to permeate the soil while still allowing parking. 

The Town’s Zoning By-law 2010 stipulates there should be a 3 metre plant and vegetation buffer zone around the boundary of an apartment building with a R5 zoning designation – just like the one at 443 Timothy Street. However, this cordon sanitaire perversely does not apply in this case – just when it is most needed.  

I am told it is all about “legal nonconformity”.

443 Timothy Street was consumed by fire on 28 November 2012. What was left of the structure was demolished on 26 August 2013. Work started on the plot in 2015. The ground was excavated with heavy machinery and then levelled. By December 2015 the new building was being framed and, by the turn of the year, it had a roof. As I say, the land at the boundary line which had previously been porous was paved over in May 2019.  

Grandfathering

The Town says the owner of the apartment building can pave over his land – despite the most recent Zoning By-law - because of “grandfathering” rights. This allows the owner to use the parking area without the required 3 metre buffer if the yard had previously been used as a parking area in a way that would not be permitted now. 

In short, it doesn’t conform with the Zoning By-law – but it’s legal nevertheless because of its previous use. Hence the term “grandfathering”.

Everyone sees the problem. And by all accounts everyone wants to do something to help the old oak tree but the people with the power to do something about it are wringing their hands. We seem to be stuck in a weird kind of bureaucratic stasis where nothing significant is happening.  

Private matter

The Town says the paving of the yard is a private matter between the two neighbours – the one with the designated tree on her land and the apartment owner who paved right up to the boundary line.

Clearly, this is a matter for the lawyers. But I am left wondering if grandfathering rights could be lost if there is a delay in rebuilding a structure lost to fire? In this case, it was over three years for the new replacement building to be erected. 

Would the new Zoning By-law with its 3 metre buffer be disapplied after five, ten or even 20 years? I have no idea. 

Unfortunately, the old oak tree doesn’t understand these legal niceties. 

It doesn’t know it is designated because of its unique historic value. 

It isn’t bewildered – as I am – that so little is being done to ensure its survival.

And when the old oak tree is dead and gone we shall all agree it was a terrible thing that should never have been allowed to happen.

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Update at 17.15 on Tuesday 29 October 2019: The Mayor, John Taylor, this afternoon confirmed that the Town had reached an agreement with the owner of 443 Timothy Street. I am told the paving in the yard is to be removed and will be replaced with pervious pavers. This work is scheduled to be done in the next month or so. The Mayor describes the tree as “incredibly important” and says he shares everyone’s concern. It is terrific news that things are moving.

The demolition of the historic Simpson building at 184-186 Main Street South in the heart of the Heritage Conservation District was a calculated decision by the owner Bob Forrest. It wasn’t inadvertent. (Photo: Bob Forrest in centre with his wife Colleen)

According to Newmarket Today the Simpson Building was demolished overnight on 9-10 October 2019. 

The Town was not informed beforehand that the developer was going to demolish the protected building. The Town’s Chief Administrative Officer, Jag Sharma, told councillors on 15 October 2019:

“There was no demolition permit issued for that property.”

The Town has asked Forrest for an explanation and has received some information in reply. We shall learn shortly if the Town is prepared to prosecute. Personally, I don’t see any alternative. A slap on the wrist isn’t enough.

It would cost $100,000 to fix

Dave Hunter, the owner of Lemon and Lime, recollects a site supervisor telling him at 2pm on Thursday 10 October 2019 why 184-186 Main Street South (the Simpson building) was torn down:

“(The building) was unsafe and it would cost $100,000 more to fix it than to take it down. So the owner said take it down.” 

Jacques Carrier, from CFCW Construction Inc, told me to my face on Tuesday 15 October 2019 the Simpson building had to come down because it was unsafe. It was being held up by the Clock Tower. He went on to tell me the building next door (188-192 Main Street South) was also unsafe.

From the earliest days, the developer Bob Forrest stressed the economics of his massive Clock Tower project. It had to be financially viable and deliver a profit otherwise he would walk away. In an email on 23 October 2012 he warned (the then) Town CAO Bob Shelton that he was prepared to pull the plug: 

“We are spending money to work out issues with Heritage and BIA. The cost of preparing a complete application for zoning is too onerous for us to undertake without having (redacted). Given that we have spent over $100,000 on reports and design in the last 30 days if the above (ie his proposal) is not going to fly we prefer to withdraw right now.”

Condo plan in historic downtown rejected

After years of negotiations with senior Town staff and with elected members Forrest’s condo project in the old downtown was finally rejected by Newmarket Council on 5 December 2016. 

By early May 2018 Forrest had reached an accommodation of sorts with the Town. The heritage buildings would remain but some more recent additions at the rear could be demolished. Under the terms of the May 2018 Agreement with the Town he undertook to act in good faith - a promise which seems risible now.       

In April 2019 the Forrests announced they were going to sell all the properties they owned on Main Street South once the restoration work had been completed – lubricated with a grant of up to $100,000 from the Town.

Pouring money into the project. 

Bob Forrest’s wife, Colleen, who is Vice President (Operations) of the Forrest Group, told Newmarket Today:

 “We’re stripping out the interiors of those buildings and we’re doing restoration. We’re working with a heritage architect and heritage contractor who we’ve worked with in the past and, following that, we’ll be selling those buildings.” 

 “There’s an economics that comes into play for a developer. You have to be able to make it work. To renovate and to do what was there before (at the clock tower) doesn’t work.”

 “It’s the best exit plan we can get for our partners because we can’t continue to pour money into the project.”

Bob and Colleen Forrest were acutely aware of all the constraints which applied when building (and demolishing) properties within a Heritage Conservation District.

They cannot claim ignorance.

Heritage Impact Assessments

On 2 October 2013 Forrest gave notice to his business tenants in the Main Street properties that he wanted them out citing demolition and redevelopment as a reason. This was premature. Senior Town staff told Forrest on 25 October 2013 that

“Council have final say (unless appealed to the OMB) on demolition of buildings within a Heritage District…”

Bob Forrest knew all about demolition in a Heritage Conservation District. Indeed, he had commissioned Heritage Impact Assessments on the Main Street properties he owned. And he brought an appeal to the OMB intending that his 

"redevelopment application should not be subject to Part V of the Ontario Heritage Act" 

which rather suggests he was familiar with the legislation

Demolition by neglect

Over the years the Janus-faced Forrest allowed his heritage properties to rot and decay while pretending otherwise. When he gave a presentation to councillors on 9 May 2016 he had second thoughts about showing them a slide which would have told them: 

“The roofs leak. The roofs and floors sag.” 

At the last moment he pulled the slide, continuing with the pretence that he was maintaining his heritage properties, protecting them from the elements.

Section 69 of the Ontario Heritage Act makes it an offence to demolish without permission a property in a Heritage Conservation District with fines up to $1,000,000 and imprisonment. The law makes it crystal clear that the illegal demolition of a designated heritage property is a very serious offence.

Above the law

Over the years, across the Province prosecutions have been brought by Toronto, Kingston, Hamilton and many other municipalities against property owners who believe they are above the law or claim ignorance of it. 

A Brampton case resulted in a fine of $25,000 for the owner of a 1913 heritage building “on course” to being designated. At the other end of the scale, a Scugog builder was fined $800 for demolishing a heritage home without a permit. 

A century home in Unionville Heritage Conservation District was demolished after a fire. The Municipality (Markham) ordered the owner to repair the structure. Instead it was razed to the ground, leaving only the façade and a few beams.

Here in Newmarket we have a more egregious example where demolition in a Heritage Conservation District was brazenly ordered by a developer with intimate knowledge of the law on heritage properties. 

What was the choice facing the Forrests?

(a) The possibility of being fined for the unlawful demolition of a protected building they claimed was unsafe or (b) Spending $100,000 to make the building safe again after years of deliberate neglect.

For the Forrests it was a no-brainer. It made financial sense to pull the old building down.

And give two fingers to the Ontario Heritage Act.

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The York Catholic District School Board simply doesn’t learn.  

It keeps making the same mistakes over and over again.

More than a year ago, serious construction vibration from the Canadian Martyrs Elementary School in London Road, Newmarket caused damage to a number of adjacent properties (including my own) in Harrison Drive.

The Board decided it wasn’t their problem and we ended up paying for the damage they caused.

On 30 October 2018 I took a deputation to the Board explaining what happened and what should be done. I recall standing at the lectern, addressing the Board, with a giant TV screen in my line of sight, counting down the seconds in the 10 minutes given to me to make my case. The Board listened politely, asked a few desultory questions and thought we would just go away.

There are no records

The Board tells me they have no records of the vibration incident. There are no records of a gas leak in the school car park. And they don’t keep records of complaints. 

This begs the question of how the Board - which is responsible for 85 elementary schools and 16 secondary schools employing more than 5,000 teachers serving 54,000 students – currently manages its records. 

I wanted to see the Board’s Records and Information Management Program Manual which sets out the criteria for file creation, retention and destruction. It provides guidance to the Board’s staff.

Nine months ago I asked for sight of this Manual as it would help me make sense of the Board’s statement that there are no records. Indeed, in a phone call from a senior member of staff I was told the gas leak had never occurred. And this was after I told her I talked to the firefighters and got the smell of gas.

Dysfunctional organisation

I knew then that I was dealing with a seriously dysfunctional organisation, unable and unwilling to do the right thing.

My Freedom of Information requests were subsequently ignored by the Board and I was forced to involve the Information and Privacy Commissioner of Ontario. The Board stirred itself. 

The official Decision Letter of 8 October 2019 tells me:

“the Board’s Records Management Manual has not been revised since 1997”

and that it is 

“obsolete” 

Can this possibly be the case? 

Wading through treacle

Dealing with the York Catholic District School Board is rather like wading through treacle. It takes a very, very long time to get anywhere.  

On 14 October 2019 I wrote to the Director of Education, Ab Falconi, (above right) who, a year ago, advised the owners of the damaged properties to claim against their own insurers who would in turn claim against the contractor’s insurer. 

This proved to be a dead-end as insurance companies do not insure against the perils of earth movement.

I ask Mr Falconi:

“Has the Board amended and updated its policies and procedures to ensure this cannot happen in the future elsewhere on the YCDSB’s very large estate? And if not, why not? Put simply, if property damage results from construction vibration who pays for the repair and reinstatement?”

I now ask about the Board’s policy on records and information management. How does the Board organise and manage its records? In fact, the Board reviewed and approved its records and information management policy on 8 June 2010 and, most recently, on 31 May 2016. It says this: 

“Records and Information, in electronic and paper formats, shall be maintained and retained in keeping with guidelines established by the Province of Ontario and as outlined in the Board’s Records and Information Management Manual”

And that

“Staff shall be trained on their responsibilities as outlined in the Records and Information Management Manual.”

I want to know how this is possible when the Manual was last revised in 1997 and is now deemed “obsolete". 

The Records and Information Management Policy says this at paragraph 3.7:

"The Board's Records and Information Management Manual shall be updated in conjunction with any review of the Records and Information Management policy."

Obviously, this has not been done. 

Getting nowhere

I don’t know if or when I shall get a reply from Mr Falconi. I feel as though I could write to the Board for the next twelve months and get precisely nowhere. That is why I am involving the Ombudsman who investigates maladministration in public bodies.

Construction vibration is a big issue that impacts on a lot of people. That is why the Town of Newmarket recently brought in new procedures for vibration generated by new housing construction. But that’s not enough. The Town will be considering before Christmas what, if anything, can be done to protect residents from other kinds of construction carried out by rogue organisations such as the York Catholic District School Board..

Clearly, a new by-law is needed. 

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Newmarket-Aurora's new MP, Tony Van Bynen, has listed “preserving local heritage” as one of his priorities.  

Under his watch as Mayor of Newmarket one of the Town’s oldest properties dating from as early as 1811 was allowed to crumble and decay into a truly lamentable state. So it is reassuring to hear our new MP declare he is in favour of “preserving local heritage”. This is a big deal.

In the spirit of the times and with the election now safely behind him I hope he will also share with us his views on the unlawful demolition of the protected heritage building at 184-186 Main Street South

Prosecution

The President of the Newmarket Branch of the Architectural Conservancy of Ontario, Bill Wolske, yesterday told the Mayor and councillors that the ACO is

strongly of the view that the owner, Main Street Clock Inc, should be prosecuted.”

It is unclear if the Town has yet spoken to the developer, Bob Forrest, about the unauthorised demolition.  Neither Forrest nor his Main Street Clock Inc. has made any kind of public statement about the unlawful destruction of a unique part of the Town’s history.

There were signs early on that Forrest’s preferred modus operandi was demolition by neglect

Stop Work Orders stay in place

The Town has confirmed that Stop Work Orders remain in place on two of the buildings (184/186 and 188/190/192),

“as the Town continues its investigation”.

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