PART 4 — YOUR HOME, YOUR INFORMATION: HERITAGE, PRIVACY AND PROPERTY VALUE

PEC Heritage Register and Property Rights Series

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Read the series

• PART 1 – WHO IS WATCHING THE WATCHERS? PEC’S HERITAGE DESIGNATION PROJECT RAISES PRIVACY AND ACCOUNTABILITY QUESTIONS
• PART 2 – IS YOUR PROPERTY A NON-DESIGNATED PROPERTY ON PEC’S HERITAGE REGISTER? KNOW YOUR RIGHTS BEFORE THE DEADLINE
• PART 3 – WHEN DOES A HERITAGE COMMITTEE CROSS THE LINE?
• PART 4 – YOUR HOME, YOUR INFORMATION: HERITAGE, PRIVACY AND PROPERTY VALUE

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Prince Edward County maintains publicly available information concerning properties of heritage interest.Property owners should begin by checking the County’s published heritage material: Prince Edward County Heritage Designation Project

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Heritage regulation can affect more than architecture.

It can intersect with private property rights, personal information, financing, redevelopment, marketability and the economic expectations of owners.

Those consequences require precision.

The strongest legal concerns arise not from the mere existence of heritage regulation, but from unclear authority, improper information handling, procedural unfairness and unsupported assumptions about what a heritage designation or listing legally means.

A PROPERTY ADDRESS IS NOT AUTOMATICALLY PRIVATE INFORMATION

The publication of a residential address on a lawful municipal heritage register does not, by itself, establish a breach of the Municipal Freedom of Information and Protection of Privacy Act.

Ontario privacy law distinguishes between information about a property and personal information about an identifiable individual.

Municipal heritage legislation also contemplates public registers.

Accordingly, any allegation that the County has breached privacy legislation merely because it published an address would be too broad.

The more serious inquiry is what additional information has been collected, how it has been used and to whom it has been disclosed.

THE REAL PRIVACY ISSUE IS INFORMATION HANDLING

Suppose heritage research includes an unsolicited visit to a private residence.

The legally relevant questions may include:

• Were photographs taken?
• Were photographs taken from public or private property?
• Did they include identifiable residents?
• Were interior areas photographed?
• Were conversations documented?
• Were private email addresses or telephone numbers collected?
• Were personal circumstances recorded?
• Was private correspondence circulated?
• Were records stored on personal devices?
• Were they shared with outside organizations?
• Were they retained as municipal records?
• Was there lawful authority for the collection and use?

Those questions are materially different from simply asking whether a street address appeared on a public list.

WHAT AN OWNER SHOULD DO IF THEY HAVE A PRIVACY CONCERN

The owner should put the concern in writing.

Ask the County to identify:

1. what information was collected;
2. who collected it;
3. the legal authority relied upon;
4. the purpose of collection;
5. where the information is stored;
6. who has accessed it;
7. whether it has been disclosed;
8. whether it was shared outside the municipality; and
9. what retention policy applies.

Where appropriate, the owner may also seek access to records through the applicable municipal freedom-of-information process.

If the matter is not resolved, Ontario’s Information and Privacy Commissioner may have jurisdiction over complaints involving municipal handling of personal information.

Information and Privacy Commissioner of Ontario — Privacy Complaints

Again, jurisdiction and facts matter.

PROPERTY VALUE: BE CAREFUL WITH GENERAL CLAIMS

A heritage listing or designation does not automatically reduce property value.

That proposition cannot responsibly be stated as a universal fact.

Some purchasers may value heritage character.

In other cases, limitations on demolition, alteration or redevelopment may reduce flexibility or affect a purchaser’s willingness to pay.

The effect is property-specific.

If an owner believes a municipal heritage decision has caused economic loss, the proper approach is evidence.

That may include:

• independent appraisal evidence;
• comparable sales;
• purchaser correspondence;
• failed transactions;
• financing evidence;
• redevelopment analysis;
• additional design and consultant costs;
• construction cost differentials; and
• evidence of restrictions directly attributable to the heritage decision.

Perception alone may matter in the marketplace, but litigation requires proof.

CAN A PROPERTY OWNER RECOVER DAMAGES?

Possibly, depending on the legal cause of action and the facts.

But an adverse financial effect does not automatically make the municipality liable.

Potential legal avenues depend on:

• what decision was made;
• whether statutory appeal rights existed;
• whether procedural fairness was denied;
• whether the municipality acted within jurisdiction;
• whether negligence or another recognized cause of action can be established;
• whether statutory immunities apply;
• whether causation can be proven;
• whether damages are sufficiently certain; and
• whether limitation periods have expired.

Municipal litigation in this area can be difficult and fact-specific.

Owners should not assume that “the property lost value” is enough.

A court or tribunal will ask why, how much, and whether the municipality is legally responsible for that loss.

THE FIRST REMEDY MAY NOT BE DAMAGES

In some circumstances, the more immediate remedy may be administrative or public-law relief rather than compensation.

Depending on the decision, an owner may have access to:

• an objection procedure;
• a statutory appeal;
• a tribunal proceeding;
• reconsideration by Council;
• judicial review; or
• another administrative remedy.

The sequence matters.

Failing to use an available statutory remedy can affect later litigation.

That is one reason legal advice should be obtained early.

PRIVACY AND PROPERTY RIGHTS CAN INTERSECT

The risk becomes more serious where heritage administration involves both property regulation and intrusive information gathering.

For example, an owner may object not only to potential designation but also to:

• uninvited photography;
• collection of information about the interior of a residence;
• circulation of private correspondence;
• public statements about the property;
• inaccurate heritage descriptions;
• or information being shared with third parties.

These issues should not be collapsed into a single complaint.

Different legal regimes may apply to different conduct.

A privacy complaint is not the same as an objection under the Heritage Act.

A Code of Conduct complaint is not the same as a damages claim.

A judicial review is not the same as an appeal.

Owners need to identify the legal problem accurately before choosing the remedy.

IF YOU BELIEVE A COUNCILLOR OR COMMITTEE MEMBER CROSSED A LINE

Again, evidence first.

Preserve records.

Then determine whether the concern is:

• conduct;
• privacy;
• excess of mandate;
• improper municipal process;
• heritage listing or designation;
• trespass or unauthorized entry;
• financial loss; or
• another legal issue.

The appropriate route may involve:

• the Municipal Clerk;
• the Integrity Commissioner;
• the municipality’s privacy or MFIPPA contact;
• the Information and Privacy Commissioner;
• Council;
• a tribunal;
• or the courts.

Choosing the wrong forum wastes time and can jeopardize deadlines.

PEC SHOULD ADOPT A HERITAGE PROPERTY OWNER BILL OF RIGHTS

The County can reduce risk substantially by publishing a plain-language rights document for affected owners.

It should state:

• the property’s precise legal status;
• the authority relied upon;
• the criteria applied;
• what restrictions exist;
• what restrictions do not exist;
• how owners can object;
• what deadlines apply;
• what information the municipality may collect;
• what access is voluntary;
• how records are stored;
• how privacy complaints are made;
• how conduct complaints are made; and
• where owners can seek review or appeal.

That would improve procedural fairness and reduce unnecessary conflict.

THE COUNTY SHOULD NOT CREATE UNCERTAINTY CASUALLY

Heritage policy has legitimate public objectives.

But public objectives do not eliminate private consequences.

Where a municipality publicly identifies properties as candidates for future regulation, it should ensure that the information is accurate, authorized and accompanied by a clear explanation of legal effect.

A “priority list” should not be allowed to create the appearance of designation if Council has not designated the property.

An advisory recommendation should not be presented as though it were a binding municipal decision.

And owners should not be left to guess whether a public statement about their property has legal consequences.

Clarity is not a courtesy.

It is an important part of fair administration.

THE LITIGATION RISK IS GOVERNANCE FAILURE

The greatest municipal litigation risk often does not arise because a council made a difficult decision.

It arises because the process was poorly controlled.

Unclear authority.

Inconsistent treatment.

Inadequate notice.

Improper information handling.

Conflicting representations.

Failure to follow statutory procedures.

Unofficial conduct by people perceived to be acting for the municipality.

Those are avoidable risks.

Prince Edward County’s new heritage framework should therefore be judged partly by whether it reduces those risks.

More staff and more consultants do not necessarily produce better governance.

Clear authority does.

THE PRINCIPLE

Heritage conservation can be legitimate.

So can property rights.

So can privacy.

So can municipal regulation.

The legal system does not require choosing one and ignoring the others.

It requires decision-makers to act within authority, follow proper procedure, treat residents fairly and respect statutory rights.

The committee advises.

Professional staff administer.

Council decides.

Property owners retain legal rights.

And where government crosses those boundaries, residents are entitled to challenge it through the proper legal process.

DISCLAIMER

This article is general public-interest information and commentary only. It is not legal advice and does not allege that Prince Edward County, Council, staff, any advisory committee or any individual has committed a privacy breach, trespass, negligence, abuse of office or other legal wrong.

Property-value impacts are fact-specific and require evidence. Privacy rights depend on the nature of the information collected, used or disclosed. Legal remedies vary depending on the statutory decision, forum, limitation period and facts.

Owners who believe they have suffered substantial financial loss, improper interference with property rights, privacy violations or other legally significant harm should obtain independent Ontario legal advice before commencing any complaint, appeal or proceeding.

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Read the series

PART 1 — IS YOUR PROPERTY ON PEC’S HERITAGE LIST? KNOW YOUR RIGHTS BEFORE THE DEADLINE

PART 2 — WHEN DOES A HERITAGE COMMITTEE CROSS THE LINE?

PART 3 — YOUR HOME, YOUR INFORMATION: HERITAGE, PRIVACY AND PROPERTY VALUE

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