Rich Products of Canada Limited v Fort Erie (Town), 2025 CanLII 43238

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 5, 2025

CASE NO(S).: OLT-24-001231

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P. 13, as amended.

Appellant: Rich Products of Canada Limited

Applicant: 955464 Ontario Limited (CONMED Health Care Group)

Subject: Minor Variance

Description: To facilitate construction of nursing home

Reference Number: A72/24

Property Address: 4 Hagey Avenue

Municipality/UT: Fort Erie/Niagara

OLT Case No: OLT-24-001231

OLT Lead Case No: OLT-24-001231

OLT Case Name: Rich Products of Canada Limited v Fort Erie (Town)

Heard: April 16, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel
Rich Products of Canada Limited (Appellant)	Aaron Platt
Town of Fort Erie (Town)	Katherine Chan
955464 Ontario Limited (Applicant)	Meaghan McDermid

DECISION DELIVERED BY T.F. NG AND ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1955464 Ontario Limited (“Applicant”) is the owner of the property known municipally as 4 Hagey Avenue (“Subject Property” / “Site”). The Applicant is governed by the CONMED Healthcare Group. The Applicant is proposing to construct a new nursing home with 96 beds and 42 parking spaces on the Subject Property.

2The Applicant made three applications, the Minor Variance for the Subject Property and a Minor Variance and a Consent application for its other property, 6 Hagey Avenue, in the Town of Fort Erie (“Town”). All three applications were approved subject to conditions imposed.

3Rich Products of Canada Limited (“Appellant”), being an adjacent property owner and a specified person pursuant to s. 45 of the Planning Act, appealed the Town’s approvals.

4The Parties managed to resolve the appeals shortly before the scheduled Hearing and requested a Settlement Hearing instead. The Appellant withdrew the appeals relating to the 6 Hagey Avenue’s Minor Variance and Consent matters, leaving the Subject Property Minor Variance as the sole matter for adjudication.

5Parties’ counsel agreed that William Heikoop’s filed affidavit and statement is to be considered the evidence in chief of the witness. The Town had no concerns with the proposed settlement.

6It must be noted that an appeal to this Tribunal pursuant to s. 45 of the Planning Act (“Act”) is a Hearing de novo and the onus of establishing that the four tests under s. 45(1) of the Act have been met remains. The four tests under s. 45(1) of the Act, require the Appellant to satisfy the Tribunal that the variance:

1. maintains the general intent and purpose of the Official Plan;
2. maintains the general intent and purpose of the Zoning By-law;
3. is desirable for the appropriate development or use of the land, building or structure; and
4. is minor in nature.

7Ms. McDermid, the Applicant’s counsel called Mr. Heikoop, a land use planner, to testify as an expert. The Tribunal qualified him to give expert opinion evidence in land use planning matters.

SITE CONTEXT

8The Subject Property is irregularly shaped and houses Crescent Park Lodge, a single-storey long-term care facility with 68 beds and 66 parking spaces, servicing both 4 and 6 Hagey Avenue. The Subject Property is 0.698 hectares (6,983 m²) in total area and has 79.69 metres of frontage along Hagey Avenue. The Site is located on the south side of Hagey Avenue, north of the Queen Elizabeth Way, west of Findlay Crescent.

9The long-term care facility on the Subject Property functions in tandem with Maple Park Lodge, another long-term care facility located at 6 Hagey Avenue. 6 Hagey Avenue contains a two-storey long-term care facility that comprised 96 beds, and 15 parking spaces.

10The subject property is surrounded by the following:

North: Douglas Memorial Hospital (Institutional) South: Open Space and Queen Elizabeth Way (QEW) East: Maple Park Lodge (Institutional) and Low-Density Residential along Findlay Crescent West: Rich Products of Canada Ltd. (Industrial)

Application History

11On September 23, 2024, a Minor Variance application was submitted for 4 Hagey Avenue, while a Consent Application and a Minor Variance application was submitted for 6 Hagey Avenue.

12The Town Staff prepared Reports for the Committee of Adjustment (“COA”) Hearing, which recommended that the Minor Variances and Consent applications be approved, subject to conditions.

13The COA approved the Minor Variance to the Town’s Zoning By-law 129-90 for 4 Hagey Avenue, subject to conditions, being Municipal File No. A72/24, as well as the Minor Variance for 6 Hagey Avenue, being Municipal File No. A73/24, subject to conditions, and granted provisional consent for a boundary adjustment between 4 and 6 Hagey Avenue, being Municipal File No. B47/24.

Variance

14The approved Minor Variance for the Subject Property permits a reduction in the Minimum Interior Side Yard setback (east) to 1.2 metres, whereas the required Minimum Interior Side Yard setback is 50 metres in the site specific Institutional Zone I-56. (Section 31.3, Exceptions to the Institutional (I) Zone, of Zoning By-law 129-90).

15The Minor Variance was necessary to ensure zoning compliance to facilitate the location of the proposed new building on the Site in conjunction with the boundary adjustment and the revised property line with 6 Hagey Avenue.

16In its decision, the COA imposed the following condition:

The Owner / Applicant shall, to the satisfaction of the Town of Fort Erie, be granted final approval of Consent Application B47/24. This condition shall not be considered fulfilled until said Consent decision to grant the approval is final and binding.

17On December 11, 2024, the Appellant appealed the COA's decision approving the Minor Variances for each of the 4 Hagey and 6 Hagey properties as well as the provisional Consent.

18Following the filing of the appeals, the Applicant and the Appellant entered into settlement discussions and reached a settlement of the appeals. On April 8, 2025, the Appellant withdrew its appeals of the Minor Variance for 6 Hagey and the provisional Consent.

19The Appellant and Applicant have agreed to resolve the appeal of the Minor Variance for the Subject Property based on two additional conditions.

20The first condition requires that the mitigation measures recommended by the Noise and Vibration Impact Study, authored by RWDI and dated October 10, 2024, be constructed and/or installed (as the case may be) and maintained in the development. Such mitigation measures are:

1. The buildings shall be constructed to include the installation of central air conditioning to service any habitable space;
2. All suite bedrooms on the south facade shall have window glazing with a minimum sound isolation performance of STC-34;
3. All suite bedrooms on the west facade shall have window glazing with a minimum sound isolation performance of STC-31; and
4. All windows associated with any noise sensitive space, including the chapel room(s) and dining room(s), located on the west facade of the building shall be inoperable windows.

21The second condition requires that an agreement pursuant to the Industrial and Mining Lands Compensation Act between the Applicant and the Appellant be registered on title of the 4 Hagey Avenue subject to the Minor Variance application.

22At the Hearing, counsel clarified that the variance is: To permit a reduced easterly minimum interior side yard of 1.2 metres whereas 50 metres is required. The COA approved the variance subject to condition: “The owner/applicant shall, to the satisfaction of the Town of Fort Erie, be granted final approval of Consent Application B47/24. This condition shall not be considered fulfilled until said Consent decision to grant the approval is final and binding”.

ANALYSIS AND DECISION

23After reading the documents on record, hearing from the expert witness and considering the submissions, the Tribunal finds that the variance satisfies the four tests under s. 45(1) of the Act for the reasons that follow.

24The Tribunal generally agrees with the opinion evidence of Mr. Heikoop.

[Planning Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p13/latest/rso-1990-c-p13.html)

25The Tribunal is satisfied that the proposed variance has regard for the matters of provincial interest as set out in s.2 e), f), h), and i) of the Act.

26The proposed development will efficiently utilize existing services, which service the existing building on the Site (s.2(e)). The development facilitates a better use of a Site with efficient communication, transportation, sewage and water services, and waste management services (s.2(f)).

27The proposed long-term care facility will replace the current facility that has capacity constraints. The new facility will be adjacent to the existing long-term care facility, with a hospital to the north on the other side of Hagey Avenue. The new facility provides a greater number of units, which contributes to the orderly development of safe and healthy communities, fostering a cohesive and balanced area (s.2(h)). This location is appropriate for additional development as two long-term care facilities already exist adjacent to one another. The proposed development will provide an improved health facility at the Site. (s.2(i)).

PPS

28The Provincial Planning Statement, 2024 ("PPS") provides policy direction on matters of provincial interest related to land use planning and development across the province.

29Consistent with the policies in PPS - Section 2.1 Planning for People and Homes, Section 2.2 Housing, Section 2.8.1 Supporting a Modern Economy, Section 3.1 General Policies for Infrastructure and Public Service Facilities, Section, 3.5 Land Use Compatibility, Section 2.6 Sewage, Water and Stormwater - the Minor Variance will support the development of a healthy, livable, and safe community by enabling the construction of a new institutional facility that provides additional housing for seniors through the form of a long-term care facility. By facilitating the development of a long-term care facility, the proposal contributes to the creation of complete communities, represents an efficient use of land and infrastructure, aligns with the public interest and identified Provincial priorities, and conforms with the local planning framework. This facility will meet the needs of current and future residents, while delivering improved long-term care services and amenities, without negatively impacting adjacent properties or the overall character of the area.

30Policy 3.5 of the PPS indicates that minimization and mitigation of impacts associated with sensitive land uses adjacent to existing major facilities is required to ensure the long-term operation and economic viability of major facilities. In accordance with these requirements, a Noise Study including a review of the applicable provincial guidelines standards and procedures has been completed, which provides recommendations to ensure the proposed development does not create and addresses compatibility issues between the existing and proposed uses. Mitigation measures as outlined in the Noise Study will be addressed through the Site Plan Approval process and implementation will be secured through a Site Plan Agreement, which is to be registered on title of the property and will run with title to the lands subject to the Act and the Land Titles Act.

31The additional conditions that have been agreed between the Parties through the settlement of the appeal will also require that the mitigation measures are implemented through the construction process.

32The Tribunal finds that the proposed development is consistent with the PPS.

THE FOUR TESTS

Official Plan

33The Subject Property is designated as Institutional within the Town’s Official Plan (“OP”). The Institutional designation permits the use of residential long-term care and health care facilities, nursing, and retirement homes.

34The Minor Variance will facilitate the construction of a new long-term care facility that will accommodate a greater number of beds than the existing facility at 4 Hagey Avenue. The Minor Variance conforms with Institutional policies in section 4.12.1 of the Town’s OP, as the facility will be designed and oriented to serve those directly associated with this use, and it is located next to an existing long-term care facility and across from a hospital. These uses are clustered together on lands designated as Institutional and maintain a compatible interface, allowing for appropriate interactions among similar uses.

35The Tribunal is satisfied that the variance maintains the general intent and purpose of the OP.

Zoning By-Law

36The Subject Property is zoned Institutional (I-56) in the Town’s Zoning By-law No. 129-90 (“ZBL”), which permits the use of Long-Term Care Facilities. The proposed facility at 4 Hagey Avenue, requires a reduction of the eastern Interior Side Yard to 1.2-metres from 50-metres, to accommodate the proposed massing and location of the new facility. The proposed location will provide for similar, or greater, separation from the 6 Hagey building than existing while also moving the residential units further away from the adjacent industrial use on the Appellant's lands than the existing condition. The building is situated to ensure all other zoning requirements are met, and to allow for the construction of the new building while maintaining the existing building until construction is complete, to avoid the displacement of residents.

37The proposed building and associated side yard setback will have no impact on the Hagey Avenue streetscape or the adjacent building. The reduced setback will not obstruct any uses and there will be ample amenity space to the north once the existing building is demolished. This variance will not interfere with any functionality of the Site during or after construction and will allow the facilities to continue to function as one, providing greater access to and use of the proposed shared amenity space.

38The existing building has several legal non-conforming setbacks, these setbacks do not limit the current functionality of the sites, nor do they negatively impact those that reside or will reside within these buildings.

39The Tribunal finds that the 1.2-metres interior side yard setback is appropriate. The Tribunal notes that the COA has approved the variance with the imposition of one condition. The Tribunal is satisfied that the general intent and purpose of the ZBL is maintained.

Desirable

40The Subject Property and the neighbouring lands, 6 Hagey Avenue, are both occupied by long-term care facilities operated by the Applicant. The requested 1.2-metres interior side yard setback will accommodate the proposed new, larger facility at 4 Hagey Avenue. The proposed location will allow the existing facility to remain until the completion of the new facility, and after the transition of the existing residents to the new facility, the existing facility will then be demolished. The proposed facility location will provide greater separation from the facility located at 6 Hagey Avenue, and will allow the two facilities to share parking and amenity space, and function comprehensively with respect to access and stormwater drainage.

41To accommodate a larger shared amenity space, parking area and increase the units/beds in the facility, the new building must be situated as proposed. This configuration also allows for the existing facility to remain until construction of the new facility is completed. Having communal spaces and a newly constructed building with increased units, ensures the optimal utilization of the land which is desirable.

42The Tribunal finds that the proposed variance is desirable for the appropriate use and development of the Subject Property.

Minor

43The test for whether a variance will be considered minor does not focus on the numerical deviation from a zoning standard, but instead must consider whether there are any unacceptable adverse impacts caused by the proposal.

44The proposed reduction to the easterly Interior Side Yard setback from 50-metres to 1.2-metres does not cause any adverse impacts.

45The northeastern building section of the existing facility on the Subject Property currently sits on the property line, resulting in a 0-metres setback in that location. The southeastern building section of the building is setback 1.3-metres along the southeastern lot line. With the 6 Hagey Avenue boundary adjustment facilitated by the Consent, the new facility will have a setback of 1.2-metres from the new easterly interior side yard. The area where the existing building sits will be converted to shared landscaped space for both facilities. The proposed 1.2-metres setback will be like the existing condition on the southeast portion of the existing building and greater than the condition on the northeast portion. The existing setbacks function appropriately, and no change or adverse impact is expected by the proposed setback for the new building. The proposed setback will maintain adequate space for general maintenance and access for both 4 and 6 Hagey Avenue, and will pose no negative impacts on 6 Hagey Avenue. The new facility will provide greater separation between the facilities at 4 Hagey Avenue and 6 Hagey Avenue, than currently provided and will meet applicable Ontario Building Code requirements for fire protection and fenestration.

46There is no evidence proffered that there is undue adverse impact on the owners of adjacent properties or on the neighbourhood. The Tribunal is satisfied that the variance is minor in nature.

Conditions

47Section 45(9) of the Act allows for the imposition of conditions on the approval of a Minor Variance as the COA, or in this case the Tribunal, considers advisable.

48The condition imposed by the COA is appropriate as it states that final approval of Consent Application B47/24 be granted prior to approval, and the condition shall not be considered fulfilled until said Consent Decision to grant the approval is final and binding. The boundary adjustment authorized through the Consent is required prior to the final approval of the Minor Variance as the new building will be constructed on the lands taken from 6 Hagey Avenue, and added to 4 Hagey Avenue, and the reduced setback in the Minor Variance is measured from the adjusted boundary line.

49There are two additional conditions of Minor Variance approval agreed to through the settlement. The first condition (of mitigation measures) requires the implementation of the requirements outlined in the Noise Study and provides further assurance to the Appellant that the requirements otherwise incorporated into the forthcoming Site Plan Agreement are further enshrined and confirmed as components of a Building Permit and maintained thereafter.

50The Tribunal finds that the parties do not dispute that the Appellant is a product manufacturer with an Environmental Compliance Approval (“ECA”) under the Environmental Protection Act. It has a legitimate expectation that the proposed development will not impinge upon and impact its operational compliance of the ECA. The Town has no issue with the noise mitigation condition. As a matter of compatibility between the existing and proposed development with the manufacturing facility to the west, it is important for the proposed development to consider the potential impact of the noise that emanates from the manufacturing facility. The nursing home development is a sensitive type of development, which will have an impact on the operations of the Appellant. Hence, it is consistent with provincial and municipal principles and policies to ensure that the proposed development institute mitigation measures to insulate the future nursing home residents from the effects of noise from the manufacturing facility’s operations.

51The second condition requires that the Applicant and Appellant enter into an Agreement under the Industrial and Mining Lands Compensation Act (“IMLCA”). As part of this settlement an agreement has been executed, in accordance with the proposed condition, the agreement will be registered on title to the Subject Property after the consent is finally approved and the legal descriptions for 4 and 6 Hagey Avenue, are adjusted to reflect said consent and prior to building permit issuance for the new facility contemplated by this application.

52The Tribunal finds that this condition concerns a private agreement between Parties that the Tribunal has no jurisdiction to decide on. Further, as the Tribunal is a creature of statute, the IMLCA has not provided the Tribunal planning jurisdictional capability on matters that concern that Act.

53The Appellant and the Applicant’s settlement of the issues between them resulted in a request to the Tribunal to impose two additional conditions for the approval of the variance. The Tribunal finds that it will impose the first condition but not the second condition.

SUMMARY

54In summary, the Tribunal finds the requested variance has regard for the provincial interests of s. 2 of the Act, is consistent with the PPS, meets all four tests of s. 45(1) of the Act.

ORDER

55The Tribunal Orders that the Appeal is allowed in part and the variance to Zoning By-law No. 129-90 is authorized SUBJECT to the conditions that:

1The Owner/Applicant shall, to the satisfaction of the Town of Fort Erie, be granted final approval of Consent Application B47/24. This condition shall not be considered fulfilled until said Consent decision to grant the approval is final and binding.

2The buildings shall be constructed to include the installation of central air conditioning to service any habitable space.

3All suite bedrooms on the south facade shall have window glazing with a minimum sound isolation performance of STC-34.

4All suite bedrooms on the west facade shall have window glazing with a minimum sound isolation performance of STC-31; and

5All windows associated with any noise sensitive space, including the chapel room(s) and dining room(s), located on the west facade of the building shall be inoperable windows.

“T.F. Ng”

T.F. NG 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.