Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: September 26, 2022

CASE NO(S).: OLT-22-003730

PROCEEDING COMMENCED UNDER section 34.1(1) of the Ontario Heritage Act, R.S.O. 1990, c. O.18.

Applicant/Appellant: Robert Long

Subject: Demolition of a building or structure on a property designated pursuant to s. 29 of the OHA

Reference Number: 130103

Property Address: 477 Ridge Road North

Municipality/UT: Fort Erie/Niagara

OLT Case No.: OLT-22-003730

OLT Lead Case No.: OLT-22-003730

OLT Case Name: Long v. Fort Erie (Town)

Heard: August 5, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Robert Long

P. Maloney

T. Jeyachandra (Summer Student)

Town of Fort Erie

C. Shedden

MEMORANDUM OF ORAL DECISION DELIVERED BY HUGH S. WILKINS ON AUGUST 5, 2022 AND ORDER OF THE TRIBUNAL

1On August 5, 2022, the Tribunal held a Case Management Conference (“CMC”) regarding the appeal proceeding brought by Robert Long under s. 34.1(1) of the Ontario Heritage Act regarding the refusal by the Town of Fort Erie to approve an application to demolish a dwelling on the property located at 477 Ridge Road North.

2At the CMC, the Tribunal addressed the identification of issues, opportunities for settlement discussions, and the setting of hearing dates.

Identification of Issues

3Prior to the CMC, on August 4, 2022, the Parties filed a draft Procedural Order and Issues List with the Tribunal. At the CMC, the Parties discussed the issues and identified the witnesses that they would call at the hearing. They agreed to file a final draft Procedural Order and Issues List with the Tribunal subsequent to the CMC with hearing dates and procedural due dates incorporated. The Parties filed these documents on August 22, 2022. The Tribunal has reviewed and approves them.

Opportunities for Settlement Discussions

4Given the nature of the appeal, the Parties expressed reservations regarding the possibilities for useful settlement discussions. The Tribunal encourages the Parties to consider engaging in discussions or mediation should their positions change or if opportunities for the narrowing or resolution of issues emerge.

Scheduling of Hearing

5The Tribunal scheduled a 5-day hearing commencing on Monday, February 13, 2023.

ORDER

6The Tribunal approves the draft Procedural Order and Issues List attached as Attachment 1 to this Order and Decision.

7The Tribunal orders that the hearing shall be held by video hearing commencing on Monday, February 13, 2023 commencing at 10 a.m. Five days have been set aside.

8Parties and participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/719383509

Access Code: 719-383-509

9Parties are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.

10Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

11Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the video hearing to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

12This Member is not seized.

13There will be no further notice.

“Hugh S. Wilkins”

hugh S. wilkins

MEMBER

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

OLT-22-003730 – Attachment 1

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

PROCEEDING COMMENCED UNDER section 34.1(1) of the Ontario Heritage Act, R.S.O. 1990, c. O.18.

Applicant/Appellant: Robert Long

Subject: Demolition of a building or structure on a property designated pursuant to s. 29 of the OHA

Reference Number: 130103

Property Address: 477 Ridge Road North

Municipality/UT: Fort Erie/Niagara

OLT Case No.: OLT-22-003730

OLT Lead Case No.: OLT-22-003730

OLT Case Name: Long v. Fort Erie (Town)

Procedural Order

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

Organization of the Hearing

2. The video hearing will begin on Monday, February 13, 2023 at 10 a.m. as follows:

GoTo Meeting: https://global.gotomeeting.com/join/719383509

Audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373

Access Code: 719-383-509

3. The parties’ initial estimation for the length of the hearing is five (5) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be as set out in Attachment 3 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before December 15, 2022 and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

10. Expert witnesses in the same field shall have a meeting on or before November 30, 2022 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT Case Coordinator on or before January 30, 2023.

11. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 13 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

12. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 13 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 13 below.

13. On or before January 19, 2023, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT Case Coordinator and in accordance with paragraph 22 below

14. On or before January 19, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 22 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

15. On or before February 3, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with section 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

16. Parties may provide to all other parties and the OLT Case Coordinator a written response to any written evidence within fourteen (14) days after the evidence is received and in accordance with section 22 below.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT Case Coordinator on or before February 3, 2023.

18. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

19. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before February 3, 2023 with a proposed schedule for the hearing that identifies, at a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The parties shall prepare and file a final hearing plan prior to the further case management conference outlined in section 5 above. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

21. All filings shall be submitted electronically and in hard copy. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents email shall be governed by the Rule 7.

22. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.

This Member is not seized.

So orders the Tribunal.

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;

• direct examination by any party of similar interest, in the manner determined by the Tribunal;

• cross-examination by parties of opposite interest;

• re-examination by the party presenting the witness; or

• another order of examination mutually agreed among the parties or directed by the Tribunal.

ATTACHMENT 1

LIST OF PARTIES AND PARTICIPANTS

PARTIES

COUNSEL

Robert Long

Sullivan Mahoney LLP 40 Queen Street St. Catharines, ON L2R 6Z2 Patrick Maloney Email: pmaloney@sullivanmahoney.com Tel: (905) 688-5403

Town of Fort Erie

Daniel & Partners LLP 39 Queen Street East P.O. Box 24022 St. Catharines, ON L2R 7P7 Callum Shedden Email: sheddenc@niagaralaw.ca Tel: (905) 688-8411

PARTICIPANTS

COUNSEL/REPRESENTATIVE

N/A

ATTACHMENT 2

PROPOSED ISSUES LIST

1. Is the building on the Subject Lands reasonably salvageable and capable of preservation to allow it to be used as a viable residential use?

2. Does the amount of effort and money required to repair and rehabilitate the building to its original condition outweigh the need to preserve the building?

3. Are there any physical cultural heritage features associated with the building remaining and can they be preserved by means other than preservation of the building?

4. Can the reasons for designation of the Subject Land be properly recognized by means other than preservation of the building?

5. Is the approval of demolition of the building in keeping with the statutory purpose of the Ontario Heritage Act, being the conservation, protection and preservation of heritage of Ontario?

6. Would the issuance of a demolition permit properly balance the public and community interests in cultural heritage with the private property rights of the owner?

7. If the Tribunal orders the Town to consent to the demolition, are there any terms and conditions that should be applied?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Robert Long

2. Town of Fort Erie

3. Robert Long – Reply Evidence if necessary