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Superior Court upholds Kingston in Railway Property Standards Issue
Floyd Patterson, Frontenac Heritage Foundation, Kingston | March 26, 2013

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From Issue No. 210 | April 15, 2013

Former Grand Trunk Station, Kingston

A recent ruling by the Superior Court of Ontario states that a Justice of the Peace in Kingston acted correctly when he decided that the city's enforcement of its property standards by-law against Canadian National Railway was not disallowed by the Canadian Constitution.

On May 15, 2012 before Judge Ernest Parsons, the CNR lawyer had argued that because the judge acted outside his jurisdiction the charge of failing to comply with the city's order against CN to repair its historic Grand Trunk railway station in the city be dismissed. Judge Parsons refused, maintaining he had the authority to enforce the by-law and to conduct the trial.

During an appeal session before Judge Wolfram Tausendfreud in Ontario Superior Court, November 2, 2012, the city's lawyer Sarah Viau, pointed out that failing to comply with a municipal property standards order is a violation of Section 15-1 (3) of the Building Code Act of Ontario, and is subject to prosecution under the Provincial Offences Act. Conviction can bring heavy fines.

But a federal Act appeared to collide with the Ontario law. Railway lawyer John Mielo argued that the CNR was unable to comply with the property standards order because a federal statute, the Heritage Railway Stations Protection Act, prohibits the railway from altering the 1856 building unless an engineering survey is conducted and the repairs authorized by federal officials.

However, the Superior Court decision held that the Kingston City Council, under the Building Code Act of Ontario, has the authority "to prescribe standards for the maintenance and occupancy of property," and that "the learned Justice of the Peace did not exceed his jurisdiction by rendering a decision on the constitutional issue."

The railway station has fallen into disrepair since being taken out of service in 1974. Mayor Mark Gerretsen, at a public hearing by the Historic Sites and Monuments Board, July 21, 2011, accused the railway of "demolition by neglect," because a fire had destroyed the station roof years earlier and the railway had not repaired the building. It is designated as a heritage site under both federal and provincial laws.

The CNR, under a section of the Railway Protection Act, that permits emergency repair, removed the remains of the gambrel roof, and installed steel supports to keep the stone walls from falling down. But further annoying heritage advocates the company also defined the station's brick baggage building, and a breezeway connecting it to the main stone building, as not part of the designated historic complex and announced it was seeking permission under the Act to demolish the structures. Heritage conservationists objected to this at the Sites and Monuments Board hearing. It is up to the Minister of Environment whether the breezeway and baggage building can be removed.

The "Old Grand Grand Trunk Railway Station" at 810 Montreal Street, an administrative headquarters for the first phase of a national rail line to unify Canada, has round arched windows with tri-form transoms in an elegant Georgian architecture, earmarks of public buildings of its era.

The constitutional issue resolved, the trial on CNR's non-compliance with the property standards order at the railway station is expected to continue April 30, May 1, 2nd. Both the City and the railway company accept the view that the historic station must be restored, but CNR disagrees that it is their responsibility.

Frontenac Heritage Foundation

www.heritagekingston.com

contact@heritagekingston.com

On Heritage Canada's Endangered Places list: http://www.heritagecanada.org/en/issues-campaigns/top-ten-endangered/explore-past-listings/ontario/old-grand-trunk-railway-station

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