Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 15, 2025

CASE NO(S).: OLT-23-000755

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

Applicant and Appellant: Nantuck Investments Inc.

Subject: Refusal of application to demolish

Reference Number: 12-04-0319

Property Location: 195 Simcoe Street North (Robert McLaughlin House)

Municipality/Upper Tier: City of Oshawa, Durham

OLT Case No: OLT-23-000755

OLT Lead Case No: OLT-23-000755

OLT Case Name: Nantuck Investments Inc. v. Oshawa (City)

Heard: February 3, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel
Nantuck Investments Inc.	Mark Vernon
City of Oshawa	Melanie Mayhew-Hammond

DECISION DELIVERED BY JENNIFER CAMPBELL AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Decision arises from a case management conference (“CMC”) brought before the Ontario Land Tribunal (the “Tribunal”) regarding the appeal brought by Nantuck Investments Inc. (the “Appellant”) concerning a refusal by the City of Oshawa (the “Respondent”) of an application brought under s.34 of the Ontario Heritage Act (the “Act”) to demolish a structure located at 195 Simcoe Street North, Oshawa, Ontario (the “Property”).

2At the CMC, the Parties discussed the issues to be adjudicated at a hearing and reviewed a draft Issues List (“IL”). The Parties confirmed that they had previously engaged in mediation but were unable to reach a settlement.

BACKGROUND

3On July 6, 2023, the Respondent published a Notice of Counsel Decision to deny an application made by the Appellant pursuant to s.34(1) of the Act, to partially demolish a building located at the Property. The Property had previously sustained damage as a result of a fire that occurred in 2019, and subsequent exposure to the elements over the ensuing period. The Respondent applied for the demolition in connection with its proposed construction of an addition which would contain two commercial and six residential units.

4At a prior CMC held on November 25, 2024, the Parties had not yet agreed upon a draft Procedural Order (“PO”) and IL. Accordingly, the present CMC was scheduled for the review of a draft PO and IL, although the Parties confirmed that they were still not fully in agreement. The draft IL which was reviewed at the CMC is reproduced below:

1. Should the Ontario Land Tribunal order the municipality to consent to the Appellant’s application (the “Application”) to demolish 195 Simcoe Street North, Oshawa, ON (the “Subject Property”), which was designated as being of cultural heritage value or interest pursuant to Part IV of the Ontario Heritage Act, R.S.O. 1990, c. O.18 (the “Ontario Heritage Act”) on October 2, 2023 through the passing of By-law 115- 2023?

2. If the municipality is ordered to consent to the demolition of the Subject Property, what, if any, terms and conditions should be attached to the demolition permit which would commemorate the cultural heritage value of the Subject Property?

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

4. Does the Subject Property retain its cultural heritage value or interest? Does the Subject Property continue to meet sufficient criteria for designation under Part IV of the Ontario Heritage Act?

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

6. Does the Application contain enough detail to determine what level of intervention is being proposed?

7. Does the Application represent proper heritage conservation when considering restoration of the Subject Property in accordance with established heritage principles, including the provincial statutes and policies, the relevant municipal level Official Plan policies, and the federal and provincial guiding principles in the conservation of built heritage properties?

8. Does the Application adequately investigate the condition of the Subject Property, and whether it can be retained, conserved, or restored in whole or in part, such that it can be conclusively determined that full demolition is the only viable option for redevelopment of the site?

9. Does the present condition, including the structural condition, of the Subject Property reasonably preclude retention of all, or any part of the Subject Property? Further, can the Subject Property be reasonably restored in a safe manner?

10. Is the building on the Subject Property reasonably salvageable and capable of preservation for human habitation?

11. Which aspects of the present condition of the Subject Property can be attributed to: a) The pre-fire conditions?

b) Fire damage?

c) Post-fire conditions?

12. Has the Applicant taken proper interim measures to adequately preserve the Subject Property and mitigate further deterioration to the Subject Property:

a) Since the fire occurred in April of 2019?

b) Since the Notice of Intent to Designate was issued in April of 2021?

c) Since the Subject Property was designated on October 2, 2023?

13. If the Applicant has not taken proper interim measures to adequately preserve the Subject Property, how should this be factored into the decision of whether the Subject Property should be demolished or restored because of its present condition?

14. Has the Applicant demonstrated the adaptive re-use of the Subject Property is structurally impossible?

15. Should the Applicant provide a Heritage Impact Assessment and/or a Conservation Management Plan prepared by a qualified heritage professional to ensure the preservation, restoration, renovation and re-use of the Subject Property as part of a redevelopment proposal for the Subject Property?

16. Would the issuance of a demolition permit properly balance the public and community interests in any remaining cultural heritage value or interest in the Subject Property with the private property rights of the owner?

17. Was it reasonable to refuse to grant the applicant a demolition permit, when the City of Oshawa only designated the Subject Property under the Ontario Heritage Act, after the fire destroyed the building on the Subject Property?

18. Is it reasonable to refuse to grant the applicant a demolition permit, with or without conditions, when the City gave the applicant the option of demolition of the building on the Subject Property in its May 27, 2020 property standards order?

19. Is it reasonable to refuse to grant the applicant a demolition permit, with or without conditions, when the City has encumbered the subject property by registering the May 27, 2020 property standards order (which requires either demolition or reconstruction) on title to the property, clouding title and preventing the applicant from borrowing any funds against the property to use to remediate or restore the building?

20. Is it reasonable to refuse to grant the applicant a demolition permit, with or without conditions, when its insurance claim related to the fire has been denied and it would be extremely expensive (if it is even possible at all) to repair the subject building?

21. Does any part of the building remain undamaged after the fire so that there is anything to be conserved after the fire?

22. Does the amount of effort, money, time and risk to workers required to repair and rehabilitate the building to its original condition outweigh the need to preserve the building?

5With the assistance of the Tribunal, the Parties discussed the need to streamline the draft IL and to remove duplicative items as well as those items which are not relevant to a hearing de novo conducted by the Tribunal. After discussion, it was determined that (i) Issues 1 to 4, 9, 10, 16 and 21 shall remain, subject to minor modifications in wording; and (ii) Issues 5 to 8, 11 to 15, 17 to 20 and 22 shall be removed (collectively, the “Amendments”). The Parties were instructed to revise the draft IL to reflect the Amendments and submit a revised version to the Tribunal.

6Following the CMC, the Parties submitted a revised IL reflecting the Amendments, which is acceptable to the Tribunal.

7The Parties advised at the CMC that they were not yet prepared to set hearing dates, and would do so by contacting the case coordinator following the CMC. Accordingly, following the CMC and at the request of the Parties, the Tribunal then proceeded to set hearing dates in respect of this matter and confirmed that the Merit hearing will be held by video hearing from Monday, September 15, 2025 at 10 a.m. to October 3, 2025 (provided that the Tribunal will not be sitting on September 30, 2025 in honour of the National Day for Truth and Reconciliation).

Go To Meeting: https://meet.goto.com/996288525

Access Code: 996-288-525

8Parties and Participants are asked to log in to the video hearing at least 15 minutes before the start of the event to test their video and audio connections.

9Parties 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

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 in to an audio-only telephone line: (Toll-Free) 1 888 455 1389 or +1 (647) 497-9391. 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 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

12The Tribunal orders that the final Issues List shall be in the form appended to this Order as Appendix “I”, and the Parties are instructed to submit a final Procedural Order to the Tribunal on or before Tuesday, July 15, 2025.

13There will be no further notice.

14This Member is not seized.

“Jennifer Campbell”

JENNIFER CAMPBELL

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.