Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 08, 2024 CASE NO(S).: OLT-23-000729

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

Applicant/Appellant: Southbridge Health Care GP Inc., CVH (NO. 6) GP INC., CVH (NO. 6) LP Subject: Refusal of application to demolish a building or structure Description: Applied for Heritage Permit to demolish the buildings and structures to construct a new 192-bed long term care home. Reference Number: 2023-12 Property Address: 65 Ward Street, 36-38 Hope Street & 20 Hope Street Municipality/UT: Port Hope/Northumberland OLT Case No: OLT-23-000729 OLT Lead Case No: OLT-23-000729 OLT Case Name: Southbridge Health Care GP Inc., CVH (NO. 6) GP INC., CVH (NO. 6) LP v. Port Hope (Municipality)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Motion By: Southbridge Health Care GP Inc. (amalgamated with CVH (No. 6) GP Inc.) and CVH (No. 6) LP - Appellant Purpose of Motion: Confirm existing consent to demolition, mootness of appeal Heard: January 23, 2024 by Video Hearing

APPEARANCES:

Parties	Counsel
Southbridge Health Care GP Inc. (amalgamated with CVH (No. 6) GP Inc.) and CVH (No. 6) LP	David Tang, Thomas Sanderson
Municipality of Port Hope	Jennifer Savini

MEMORANDUM OF ORAL DECISION DELIVERED ON BY S. DEBOER AND D. S. COLBOURNE ON JANUARY 23, 2024, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision and Order arise from the second Case Management Conference (“CMC”) held in preparation for a hearing of the merits of the Appeal by Southbridge Health Care GP Inc. (amalgamated with CVH (No. 6) GP Inc.) and CVH (No. 6) LP (“Appellant”) pursuant to s. 34.1(1) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended (“Act”), against the Municipality of Port Hope’s (“Municipality”) decision to deny the Demolition Permit for the properties municipally known as 65 Ward Street, 36-38 Hope Street and 20 Hope Street (“Subject Properties”).

2The purpose of this CMC is twofold. First, to give an oral decision from the Motion of the Appellant concerning the first demolition permit application and secondly, to authorize a Procedural Order (“PO”) and Issues List (“IL”) that is to be used to govern the merits hearing.

BACKGROUND

3The purpose of the Demolition Permit was to allow the demolition of the buildings and structures on the Subject Properties in order to construct a new 192-bed long term care home.

4The history of the permit application process dates back to 2018 and includes inter alia a decision in 2019 on the heritage designation by the Tribunal previously known as the Conservation Review Board.

5In February 2022, the Municipality approved the issuance of a permit for the demolition of the Subject Properties subject to conditions. In December 2022, the Municipality started the process to repeal the Demolition Permit due to the municipality not approving the Zoning By-law Amendment needed as a condition of the Development Agreement.

6On June 3, 2023, the Appellant made another Permit Application based on the revised development that was submitted to the Municipality. On June 9, 2023, the Ministry of Municipal Affairs and Housing (“Ministry”) issued a Ministerial Zoning Order (“MZO”) in respect to the Subject Properties to allow for the 2023 Revised Development.

7On June 29, 2023, Port Hope Council denied the 2023 Permit Application. The Appellant appealed the decision of Council to the Tribunal.

MOTION TO APPROVE FIRST DEMOLITION PERMIT

8At the beginning of the CMC, the Tribunal provided an Oral Decision in relation to the Appellant’s Motion which was heard on November 23, 2023, with reasonings to follow in a separate decision. The link to this Motion decision can be found here: https://canlii.ca/t/k33r3. The Motion pertained to the first Demolition Permit which had been denied by the Municipality. The Appellant claimed that due to the Municipality not making a decision within the statutory timelines as per s. 34 of the Heritage Act, the Municipality lost its right to refuse the Demolition Permit and said permit was still alive and valid at the time of this appeal. It was the position of the Appellant that if the Tribunal determined the permit was still alive, there would not be a need to hold a hearing pertaining to the second permit, as the second permit would not be necessary. It was the Tribunal’s decision that the Appellant’s Motion be denied and that the Municipality had the authority to change its By-law to refuse the Demolition Permit.

9Since the Tribunal made the decision to deny the Motion, a second CMC was needed to finalize the PO and IL for the upcoming merits hearing.

PARTY AND PARTICIPANT REQUESTS

10The Tribunal did not receive any further requests for Party or Participant status prior to, or at the CMC.

PROCEDURAL ORDER AND ISSUES LIST

11An updated draft PO and IL was received by the Tribunal after the completion of the CMC. The Tribunal has reviewed the draft PO and approves of its contents.

12The Tribunal directs the Participant Statements to be focused on the approved issues attached in “Schedule 1” below.

SCHEDULING OF HEARING

13The Tribunal had previously scheduled a hearing of the merits to occur by video beginning on Wednesday March 6, 2024, at 10 a.m. for a period of three days.

14Parties 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.

15The hearings are scheduled to proceed by video as follows:

https://global.gotomeeting.com/join/687587165 Access code: 687-587-165

16Parties 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.

17Parties and participants 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

18Persons 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 same as mentioned above.

19Individuals 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 hearing by video 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.

ORDER

20THE TRIBUNAL ORDERS that the Appellants Motion concerning the first demolition permit is denied.

21THE TRIBUNAL ORDERS that a Hearing of the Merits is to commence on Wednesday March 6, 2024, at 10 a.m. for a period of three days.

22The Procedural Order is to govern the procedures leading up to and including the video hearing as set out in Schedule 1 below and is full force and effect on the issue date of this Order.

23No further Notice is necessary.

“S. deBoer”

S. DEBOER MEMBER

“D. Colbourne”

D.S. COLBOURNE Vice Chair

Ontario Land Tribunal Website: 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.

SCHEDULE 1

CASE NO(S).: OLT-23-000729

PROCEEDING COMMENCED UNDER section 34.1 of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended

Applicant and Appellant: Southbridge Health Care GP Inc. (amalgamated with CVH (No. 6) GP Inc.) and CVH (No. 6) LP Subject: Appeal of denial of heritage demolition consent Property Address: 65 Ward Street, 36-38 Hope Street, 20 Hope Street Municipality: Municipality of Port Hope OLT Case No.: OLT-23-000729 OLT File No.: OLT-23-000729 OLT Case Name: Southbridge Health Care GP Inc. et al. v. Port Hope (Municipality)

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 March 6, 2024 at 10:00 a.m. at https://global.gotomeeting.com/join/687587165.

3. The parties’ initial estimation for the length of the hearing is three (3) 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 (see the sample procedural order for the meaning of these terms).

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 January 31, 2024, 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 February 9, 2024, 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 co-ordinator on or before February 14, 2024.

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 February 21, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

14. On or before February 21, 2024, 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 28, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

16. On or before February 28, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before February 28, 2024, in accordance with paragraph 22 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before February 28, 2024.

19. 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.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before February 28, 2024, with a proposed schedule for the hearing that identifies, as 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 Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

22. 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 by email shall be governed by the Rule 7.

23. 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.

The Panel is not seized.

So orders the Tribunal.

SUMMARY OF DATES

DATE	EVENT
January 31, 2024	Exchange List of Proposed Witnesses (para. 9)
February 9, 2024	Deadline for Expert Witness Meeting (para. 10)
February 14, 2024	Deadline for Statement of Agreed Facts and Issues (para. 10)
February 21, 2024	Deadline for Witness Statements, Expert Witness Statements, Participant Statements and Visual Evidence (paras. 13 to 16)
February 28, 2024	Deadline for Response to Written Evidence (para. 17)
February 28, 2024	Deadline for Joint Document Book / Hearing Plan (paras. 18 and 20)
March 6-8, 2024	Hearing (3 days)

ATTACHMENT 1

LIST OF PARTIES, PARTICIPANTS

PARTIES / PARTICIPANTS	COUNSEL

1. Southbridge Health Care GP Inc. (amalgamated with CVH (No. 6) GP Inc.) and CVH (No. 6) LP
   Appellant / Applicant | Miller Thomson LLP Scotia Plaza
   40 King Street West. Suite 5800 P.O. Box 1011 Toronto, ON M5H 3S1
   David Tang Email: dtang@millerthomson.com Tel: 416.597.6047
   Thomas Sanderson Email: tsanderson@millerthomson.com Tel: 519.593.2432
2. The Corporation of the Municipality of Port Hope
   Municipality | Templeman LLP 205 Dundas Street East, Suite 200 P.O. Box 234 Belleville, Ontario K8N 5A2
   Jennifer Savini Email: jsavini@tmlegal.ca Tel: 613.966.2620 x 2133
3. Anthony Jenkins | N/A
4. Jenny Munro | N/A
5. Bruce Bowden on behalf of the Architectural Conservancy of Ontario Inc. | N/A

ATTACHMENT 2

ISSUES LIST

The identification of an issue on this list does not mean that all parties agree that the issue, or the manner in which it is expressed, is appropriate for or relevant to the proper determination of the appeals. The extent of the appropriateness and/or relevance of the issue may be a matter of evidence and/or argument at the hearing.

Consolidated Issues

1. Should the Tribunal order that the Municipality consent to the demolition of some or all of the existing buildings on the Property, including the Port Hope Hospital, the red brick dwelling, and the power facility (collectively, the “Subject Buildings”), as sought in the application made on June 3, 2023 (the “2023 Application”)?

2. If demolition is determined to be appropriate, what are the appropriate terms and conditions to be imposed, and what is the appropriate mechanism to enforce the conditions?

3. What weight, if any, should be given to the Conservation Review Board’s determination about which criteria described under Ontario Regulation 9/06 were met?

4. Is conservation by record suitable to address the Property’s cultural heritage value?

5. What weight, if any, should be given when considering whether consent to demolition of the Subject Buildings with conditions should be ordered, to the matters of provincial interest such as those listed at section 2 of the Planning Act, including but not limited to those in subsections 2(h.1), (j), (n), and (o)?

6. What weight, if any, should be given when considering whether consent to demolition of the Subject Buildings with conditions should be ordered, to policies in the Provincial Policy Statement, 2020 referencing significant built heritage resources, public service facilities, long-term care facilities, complete communities and housing options for those with special needs, including but not limited to those found in policies 1.1.1, 1.1.3, 1.2, 1.5, 1.7, 1.4, and 2.6.1?

7. What weight, if any, should be given when considering whether consent to demolition of the Subject Buildings with conditions should be ordered, to policies in A Place to Grow – Growth Plan for the Greater Golden Horseshoe 2020 referencing cultural heritage resources, public service facilities, long-term care facilities and complete communities, including but not limited to those found in policies 3.1, 3.2.1, 3.2.8, 4.2.7.1, and 5.2.4?

8. What weight, if any, should be given when considering whether consent to demolition of the Subject Buildings with conditions should be ordered, to policies in the County of Northumberland Official Plan, including but not limited to those found in policies C1.1(d), (e), and (f); C1.3(c); C1.5.1(f) and (g); C1.5.2(b); and D3.5(a), (c) and (d)?

9. What weight, if any, should be given when considering whether consent to demolition of the Subject Buildings with conditions should be ordered, to policies in the Municipality’s Official Plan, including but not limited to those found in policies C11.1, C11.2 (C11.2.1, C11.2.2, C11.2.3(a), (c), (g)) and C11.3.5(d)?

Other Issues

Port Hope

10. Has the Heritage Impact Assessment (HIA) and addendum to HIA prepared by MHBC demonstrated that the cultural heritage value or interest of cultural heritage resources will be conserved through the demolition of the buildings?

11. If demolition is determined to be appropriate, are mitigation measures recommended in the MHBC HIA and HIA addendum sufficient to conserve the heritage values and heritage attributes of the Property?

12. To what extent, if any, should the current condition and/or use of a building be considered on an application for demolition under the Ontario Heritage Act? If relevant, what is the current condition and use of the Subject Buildings?

13. To what extent, if any, should the financial implications of conservation of a building be considered on an application for demolition under the Ontario Heritage Act? If relevant, what are the financial implications of requiring the preservation of the Subject Buildings?

14. Has the proponent adequately and appropriately considered alternatives to demolition of the buildings?

Southbridge

15. Is documentation and salvage an appropriate means of conserving the heritage value or interest of the buildings?

16. What weight, if any, should be given to the current condition and/or use of a building be considered on an application for demolition under the Ontario Heritage Act? If relevant, what is the current condition and use of the Subject Buildings?

17. What weight, if any, should be given to the financial implications of conservation of a building be considered on an application for demolition under the Ontario Heritage Act? If relevant, what are the financial implications of requiring the preservation of the Subject Buildings?

18. What weight, if any, should be given to whether the proponent has adequately and appropriately considered alternatives to demolition of the buildings?

19. What weight, if any, should be given to and what are the impacts of requiring preservation of the Subject Buildings on:

a. the 97 residents of the Subject Buildings; and

b. future potential residents of the Applicants’ 192-bed long term care home proposed for the subject lands?

20. What weight, if any, should be given to any and what are the impacts that the community in the Municipality of Port Hope will experience if the Appellants are unable to:

a. continue to provide long term care housing in its existing Hope Street Terrace long term care home on the subject lands; or

b. provide the additional new 95 beds that the proposed development on the subject lands would contribute to the community?

ATTACHMENT 3

ORDER OF EVIDENCE

1. Southbridge Health Care GP Inc. (amalgamated with CVH (No. 6) GP Inc.) and CVH (No. 6) LP (“Southbridge”)

2. The Corporation of the Municipality of Port Hope

3. Reply of Southbridge, if any

ATTACHMENT 4

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.