Court File and Parties
COURT FILE NO.: CV-21-1020 DATE: 2022-04-12 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Chief Building Official of the Corporation of the City of Cambridge; and The Corporation of the City of Cambridge Applicants / Respondents to the Cross-Application – and – Haastown Holdings (Preston) Inc. Respondent / Respondents to the Cross-Application – and – Architectural Conservancy of Ontario, Heritage Cambridge Applicant on the Cross-Application
COUNSEL: Brian Chung, for the Applicants / Respondents to the Cross-Application Kyle Gossen, for the Respondent / Respondent to the Cross-Application Brandon Duewel, for the Applicant on the Cross-Application
HEARD: March 1, 2022
BEFORE: The Honourable Justice M.J. Valente
Reasons on Motion
Introduction
1Architectural Conservancy of Ontario, Heritage Cambridge (“ACO-Cambridge”) seeks leave to intervene pursuant to Rule 13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in the application brought by the Applicants pursuant to subsection 15.10 (7) of the Building Code Act, S.O. 1992 c. 23 (“the Application”). That section of the Building Code Act requires the chief building official to apply to this Court for an order to confirm an Emergency Order. In this case, the Emergency Order of the Chief Building Official of the City of Cambridge (“CBO”) authorized the demolition of the former Preston Springs Hotel (“the Hotel”) in the city of Cambridge (“the Emergency Order”). On the return of the Application, this Court will determine whether the CBO’s issuance of the Emergency Order was reasonable in the circumstances as at the date of its issuance. ACO-Cambridge wishes to participate as an intervenor with respect to this determination. The City of Cambridge (“the City”) is joined as a co-Applicant for purposes of confirming amounts to be recovered for the demolition. ACO-Cambridge has no interest in this latter issue as an intervenor.
2The sole Respondent to the Application is Haastown Holdings (Preston) Inc. (“Haastown”), the registered owner of the lands since 2013 upon which the Hotel was formerly located.
3The CBO and the City have reached an agreement with respect to the pending Application which will proceed on a consent basis, as between them, before this Court.
Background Facts
4Architectural Conservancy of Ontario (“ACO”) is a registered charitable organization. Its mandate is to preserve and protect Ontario’s significant built and natural heritage. ACO-Cambridge is an unincorporated branch of ACO which focuses on heritage conservation in and around the City. Put squarely, the proposed intervenor asserts the Emergency Order should not be confirmed by this Court.
5The Hotel was built in 1890 as a three and a half story luxury hotel in the Chateau style. In recognition of the Hotel’s architectural and historical significance, in 1992, the City designated, by way of by-law, the Hotel as a building of cultural value pursuant to the Ontario Heritage Act, R.S.O. 1990, c. O.18 and the Hotel was placed on the City's heritage properties register.
6Because of the Hotel’s deterioration, in 2000 the City registered a heritage easement on the Hotel property in consideration for an investment grant to fund the improvements to the building. Notwithstanding the investment grant, the Hotel deteriorated to an advanced state of disrepair.
7In November 2019, the City issued a minimum standards order requiring Haastown to obtain an engineer’s report to comment on the structural soundness of the Hotel and the scope of required remedial work. That report and the City's own report concluded in part that the condition of the Hotel was poor but that the building was structurally stable for limited capacity occupancy, save and except for four identified areas.
8In January 2020, the CBO issued an order to remedy an unsafe building pursuant to the Building Code Act which identified demolition as the only means of addressing the Hotel’s deteriorated state. In order to facilitate the demolition by Haastown, the City issued a notice of intention to repeal the hotel’s designating by-law which was appealed by ACO-Cambridge. The appeal was never heard because of the ultimate issuance of the Emergency Order.
9In November 2020, the CBO received supplemental engineering reports which concluded that the structure of the Hotel continued to deteriorate as a result of neglect.
10On December 23, 2020, the CBO issued the Emergency Order requiring the immediate demolition of the Hotel. Under the City's direction, the Hotel’s demolition commenced on December 31, 2020. It was completed by January 4, 2021, under public protest.
11ACO-Cambridge asserts that the Applicants were complicit in the Respondent’s employment of “demolition by neglect tactic” as a means of achieving Haastown’s plans for development of the Hotel’s lands without complying with the checks and balances of the heritage protection process. The Applicants and the Respondent deny any such tactic.
Preliminary Issue: ACO-Cambridge’s Status
12Before addressing the test as stipulated by Rule 13, Haastown raises a preliminary objection to ACO-Cambridge bringing this motion for intervenor status in the Application. Haastown’s objection is supported by the CBO and the City. Haastown argues that unlike ACO, ACO-Cambridge, is an unincorporated entity and as an unincorporated association, it does not have the legal status to bring the within motion and to intervene.
13ACO-Cambridge describes itself as a branch of ACO which was acting on behalf of ACO. All members of ACO-Cambridge are members of the non-share corporation, ACO. ACO-Cambridge does not dispute that it is an unincorporated body. Counsel for the moving party has stipulated to the Court that he has the authority to act on behalf of both ACO-Cambridge and ACO. He requests in his factum, and by way of oral motion, that “if necessary”, ACO be substituted in the place and stead of ACO-Cambridge as the moving party and proposed intervenor.
14I agree that ACO-Cambridge is not a legal entity, and therefore, cannot advance the within motion. In Guergis v. Novack, 2012 ONSC 4579, 112 O.R. (3d) 118, at paras. 41-42, this Court held that unincorporated associations do not have legal status. I am, however, prepared to exercise my discretion pursuant to Rule 26.01 to substitute ACO for ACO-Cambridge as the proposed intervenor. I am prepared to exercise my discretion because the substitution does not result in any prejudice to either the Applicants or the Respondent. Specifically, there is no limitation issue that might prevent ACO from bringing this motion to intervene, the parties have known since at least the cross-examination of ACO-Cambridge board member, Karen Booth (“Booth”), that the proposed intervenor is ACO as a registered charitable organization and that the answers of Booth on her cross-examination bind ACO. Finally, counsel confirms that ACO has agreed to be bound by any adverse cost order. I also find for these reasons that the substitution of ACO for ACO-Cambridge will not result in procedural unfairness to the parties to the Application at this stage of the proceeding.
The Legal Test
15Rule 13.01(1) provides that a person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims:
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
16The provisions of Rule 13.01(1) are disjunctive rather than conjunctive. ACO argues that it has an interest in the subject matter of the Application, and for that reason, and according to Rule 13.01(1)(a), it should be granted intervenor status. If I find that ACO does indeed have an interest in the subject of the Application, then Rule 13.01(2) requires this Court to determine whether ACO’s intervention will unduly delay and/or prejudice the determination of the rights of the parties to the proceeding.
17Granting leave to intervene is discretionary. Counsel for the CBO argues that this Court's discretion should be exercised with caution and the rule interpreted narrowly otherwise proceedings run the risk of becoming unwieldy: Tanudjaja v. Canada (Attorney General), 2013 ONSC 1878. I agree.
18Discretionary factors to be considered in deciding whether to allow a non-party to intervene are:
(a) the nature of the case;
(b) the issues involved;
(c) the likelihood that the proposed intervenor can make a useful and distinct contribution to the resolution of the issues not otherwise offered by the parties; and
(d) whether the intervention can cause injustice to the parties or undue delay: Peel (Regional Municipality) v. Great Atlantic and Pacific Co of Canada Ltd., (1990) 74 O.R. (2d) 164 (C.A.).
Positions of the Parties and Analysis
(a) Interest in the Subject Matter of the Proceeding
19The Applicants and the Respondent argue that ACO has no or and an insufficient interest in the section 15 Building Code inquiry. The inquiry is to determine if the CBO had sufficient evidence to conclude that the Hotel constituted an immediate danger to the public. While the Court's determination of that issue will examine the reasonableness of the CBO's decision in light of the information available at the time of the issuance of the Emergency Order: Ottawa (City) v. TKS Holdings Inc., 2011 ONSC 7633. The responding parties argue that ACO’s sole motivation to intervene in the Application is to undertake a judicial review or public inquiry into a host of issues irrelevant to the Application.
20Booth admitted on her cross-examination that ACO-Cambridge would seek to raise on the Application, the same issues that would be raised in a public inquiry to the demolition of the Hotel. Further, the ACO-Cambridge’s amended notice of motion seeks to raise such issues as whether:
(a) the City can act on an Emergency Order to demolish lands designated by heritage by-law;
(b) the City and Haastown should be held accountable for their actions; and
(c) the decisions made by the City were reasonable.
21I agree with the position of the Applicants and the Respondent that the only relevant party for purposes of a determination of the Application is the CBO. The City and Haastown are immaterial to the analysis. I also agree with the position of the responding parties that the goal of setting or avoiding a precedent is not sufficient “interest” to warrant intervention. Intervention based on “precedential value” does not constitute sufficient interest to justify leave to intervene under Rule 13: Gould Outdoor Advertising v. London (City), (1997) 32 O.R. (3d) 255 (Gen. Div.).
22The proposed intervenor argues that it need not have a direct interest in the very issue to be determined but rather the Rule has been interpreted to include a public interest in the proceeding to the extent that the proposed intervenor has a genuine, direct interest in the proceeding’s outcome that exceeds that of the general public: Butty v. Butty, (2009) 98 O.R. (3d) 713 (C.A.).
23The mandate of ACO and its branches is to preserve and protect the best examples of Ontario’s heritage. Simply put, the focus of the proposed intervenor is heritage conservation, and for that reason, it argues it has a direct interest in the reasonableness of the CBO's decision to order the demolition of the Hotel on an emergency basis. The membership of the local branch of the ACO includes members of the City's municipal heritage advisory committee. This is a committee of heritage specialists and development professionals, such as engineers and architects, who together advise the City on matters relating to heritage properties.
24The moving party also asserts that the Court is given greater latitude in matters of public importance as opposed to private two-party litigation. In this respect ACO relies on the decision of this Court in Pinet v. Mental Health Centre, Penetanguishene.
25Counsel for the CBO argues that the case before me is it not a matter of public interest and any reliance on this Court's decision in Pinet is flawed because the case before me does not address Charter rights as in Pinet.
26While I agree that the Application does not involve any Charter issues, I nonetheless find that the subject of the Application is a matter of public importance. Not to the extent of the Charter, of course, but nonetheless a matter of significance beyond the interests of the parties. The Hotel was a designated heritage property. It was a significant enough landmark in the community to cause public protest when its demolition was ordered.
27Furthermore, because the subject of the Application is a matter of some public importance, coupled with the undisputed mandate of ACO’s local branch to advocate for the preservation of Ontario’s built and natural heritage in the area, I find that the moving party has an underlying interest in the subject matter of the Application. It has an interest, beyond that of the general public, in this Court's decision, respecting the reasonableness of the CBO’s conclusion that public safety concerns justified the demolition of a heritage building.
(b) Undue Delay and/or Prejudice of the rights of the parties to the Application
28The Respondents to the motion assert that even if I were to find that ACO has a sufficient interest, leave to intervene should not be granted because the circumstances of this case will cause injustice and undue delay to the parties to the Application. The CBO and the City rely on this Court's decision in M. v. H., (1994) 20 O.R. (3d) 70 (Gen. Div.), in which Epstein J. (as she then was) found “the Court's focus should be on whether the contribution that might be made by the intervenors is sufficient to counterbalance the disruption caused by the increase in the magnitude, timing, complexity and costs of the original action”. I agree.
29The CBO and the City argue that granting ACO leave would not only cause undue delay but would also prejudice the interests of the CBO because the Act requires the CBO to bring the Application “as soon as practicable” and any delayed hearing of the Application would create an obstacle for the CBO to meet this obligation.
30The responding parties also assert that granting leave to ACO to intervene would be prejudicial to the extent that it seeks to raise extraneous issues to the Application which will create significant confusion and complexity. They rely on the widely accepted principle that intervenors cannot expand the scope of the proceeding by raising issues that are not already before the Court: Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 174.
31Finally, the responding parties argue that there is already a full evidentiary record before the Court which will permit a fulsome consideration of the issues, and in any event, ACO has no particular expertise which might assist the Court in the determination of the issues on the Application.
32I do not accept the argument that the intervention of ACO would create an obstacle for the CBO to satisfy its obligations under subsection 15.10(7) of the Building Code Act. Pursuant to that provision, the CBO is obligated to apply “as soon as practicable” to this Court for an order confirming the Emergency Order; there is no obligation on it to have the Application adjudicated on an immediate basis as it asserts.
33The moving party argues that its contribution to the Application will indeed counterbalance any disruption to the adjudication of the Application, which would have otherwise proceeded on a consent basis. Specifically, it argues that the evidentiary record is incomplete. It points to certain contemporaneous communications from the Region of Waterloo's heritage planning advisory committee and the municipal heritage advisory committee not forming a part of the current record. It also argues that it can provide specialized knowledge and expertise to the determination of the issue on the Application because its members are heritage professionals.
34I accept that the application record as it currently stands may indeed be incomplete. I also accept that given the subject matter of the Application, ACO has specialized knowledge that may facilitate the determination of the Application. It is undisputed that ACO’s membership includes architects and engineers as well as persons who sit on the municipal heritage advisory committee which has the mandate of advising the city on matters relating to heritage properties.
35Having found that ACO has an expertise that will facilitate a determination of the ultimate issue, I also find that if ACO is given the liberty of raising all of the extraneous issues it proposes to raise (as stipulated in its notice of motion and confirmed by Booth on her cross-examination), the Application would be inappropriately expanded and made more complicated in terms of magnitude, timing and costs. I am not prepared to permit that.
Disposition
36Considering all the facts, I am, however, prepared to exercise my discretion to grant ACO leave to intervene in the application on limited terms. These terms are as follows:
(a) ACO will restrict its evidence and its counsel’s submissions will be limited to one issue and one issue only. That issue is the reasonableness of the CBO's issuance of the Emergency Order based on the circumstances as at December 23, 2020; and
(b) ACO will be limited to adducing evidence on the Application to two affidavits, including any expert testimony.
37Should I grant ACO intervenor status, the CBO and City request that I also limit the length of ACO’s factum and the timing of its oral submissions. Given that ACO has been granted intervenor status subject to the above limitations, I am not prepared to make any such order.
38The responding parties to this motion have also requested that in the event that I grant ACO intervenor status, the ACO not be entitled to seek costs of the application but be the subject of costs if unsuccessful.
39The moving party submits that it is a public interest litigant, and therefore, the normal two-way cost regime does not apply; instead ACO should be entitled to its costs if successful and not liable for costs should it not be successful: Incredible Electronics Inc. v. Canada (Attorney General), (2006) 80 O.R. (3d) 723 (S.C.). In the alternative, ACO submits that costs of the Application should be left to the discretion of the judge hearing the Application.
40The Supreme Court of Canada at para. 37 of Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524 sets out a three-part test for determining whether a party is a public interest litigant. That test requires the exercise of judicial discretion in weighing whether:
(a) there is a serious justiciable issue;
(b) the nature of the party’s interest; and
(c) if there is other reasonable and effective means to adjudicate the issue.
41I also note that the Supreme Court of Canada in Downtown Eastside Sex Workers United Society has directed that “the factors to be considered in exercising the discretion should not be treated as technical requirements and the principles governing the exercise of this discretion should be interpreted in a liberal and generous manner” (at para. 35).
42I not only find that the issue to be determined pursuant to subsection 15.10(7) of the Building Code Act is a serious justiciable issue but also that ACO’s intervention in the Application is an effective means of having the matter of the Application decided. I also find that ACO has a stake in the issue to be decided on the Application.
43Having decided that ACO is a public interest litigant, I am not, however, at this time prepared to order that it not be liable for the costs of the Application if unsuccessful in its submission that the Emergency Order should not be confirmed. Instead, I order that the issue of ACO’s liability for costs if unsuccessful be left to the discretion of the Application Judge who will determine if ACO should be liable for costs on what would otherwise be an unopposed application.
44As far as the costs of this motion, I would encourage the parties to come to an agreement. If they are unable to do so however, ACO may make written submissions as to costs within 15 days of the release of these Reasons. The responding parties to this motion have 10 days after receipt of ACO’s submissions to respond and ACO has a further five days to reply. Each party’s initial written submissions shall not exceed three double-spaced pages, exclusive of offers to settle, cost outlines and authorities while the moving parties reply submissions, if any, shall not exceed two double spaced pages. All costs submissions shall be forwarded to my attention by way of email to my judicial assistant, Kelly Flanders, at kelly.flanders@ontario.ca with a copy to Kitchener.SCJJA@ontario.ca. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs between themselves.
45The Application is otherwise to be adjourned to a scheduling conference to be arranged by counsel with the cooperation of the trial coordinator.
M.J. Valente, J.
Date: April 12, 2022