Court File and Parties

COURT FILE NO.: CV-21-1020 DATE: 2023-11-29 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Chief Building Official of the Corporation of the City of Cambridge, Applicant – and – Haastown Holdings (Preston) Inc., Respondent – and – Architectural Conservancy of Ontario, Intervenor

COUNSEL: Mr. B. Chung, counsel for the Applicant Mr. K Gossen, counsel for the Respondent Mr. B. Duewel, counsel for the Intervenor

HEARD: March 27, September 8, and November 17, 2023

BEFORE: The Honourable Justice M.J. Donohue

REASONS FOR DECISION ON APPLICATION

ISSUES

[1] Chief Building Official Purcell (“CBO Purcell”) for the City of Cambridge (the “City”) issued an emergency order on December 23, 2020 requiring the immediate demolition of the former Preston Springs Hotel, owned by the respondent (“Haastown”).

[2] The building was a designated historical building pursuant to the Ontario Heritage Act, R.S.O. 1990, c. O.18.

[3] The chief building official (“CBO”) is obligated to bring this application pursuant to s. 15.10(7) of the Building Code Act, 1992, S.O. 1992, c. 23 to confirm the reasonableness of their emergency order made under s. 15.10(1).

[4] This application seeks two court orders:

(1) The court is asked to confirm that the order was reasonable because the building posed an immediate danger to the health and safety of the public; and

(2) The court is asked to order that the monies spent on measures to terminate the danger in respect of the emergency order in the amount of $349,338.27 is recoverable by the applicant and shall be paid by the respondent.

[5] Haastown, the property owner, consents to both orders.

[6] The Architectural Conservancy of Ontario (“ACO”) was granted intervenor status regarding order number one, being the reasonableness of the CBO’s conclusion that public safety concerns justified the demolition of this heritage building based on the circumstances as at December 23, 2020.

[7] The ACO takes no position regarding order number two regarding recovery of the costs of the demolition from Haastown.

HISTORY OF THE BUILDING

[8] The building site had been the Preston Springs Hotel which was completed in 1888. It existed as a luxury hotel for a time and later served as a Canadian naval training facility, a Lutheran retreat and a retirement home. Materials filed state that during the 1970s the building fell into receivership and disrepair. Sometime in the 1990s the hotel became vacant and closed to the public.

[9] In 1992 the City designated the hotel as a heritage building under s. 37 of the Ontario Heritage Act.

[10] It was an important City landmark; it was a good, well-preserved and representative example of its architectural style: Chateau; it was a well-preserved example and illustration of the City’s social and economic development history.

[11] It did not continue to be “well-preserved”.

[12] It remained vacant and boarded up and exposed to the elements in portions for over 20 years thereafter. There was a failed attempt to construct a west wing on the building sometime in the 1990s but it was not completed.

[13] Haastown purchased the property in 2013 and they described it as “dilapidated”. Their intention was to do some form of restoration and redevelopment of the property. They failed due to a “multitude of structural, mechanical, electrical and other problems with the property.” Their evidence was that they cleaned the building, did some repairs, and closed off access using eight-foot high plywood hoarding along one side and seven-foot high chain link fencing around the rest.

DETERMINED TRESPASSERS

[14] All parties agreed that repeated breaches were made in the fencing to gain access to the property over the years.

[15] Haastown was continually called upon to repair the fencing. They installed motion detectors and smoke detectors. They covered doors, windows and openings. They used steel plates, locks, concrete blocks and poured concrete with reinforced steel to keep the barriers up.

[16] However, the hotel became an attraction to a variety of trespassers who would “go to great lengths to obtain access.”

[17] The variety of trespassers included youth, vandals, scavengers, the homeless, “urban explorers”, graffiti artists, thrill seekers, those fascinated with the paranormal. One description was that it became a mythical haunted house.

[18] Trespassers illegally entered the abandoned building and some would document their experiences on internet forums and YouTube. These were described as “urban explorers”.

[19] Evidence was provided that the trespassers were using hand tools, power tools and logs as battering rams to gain illegal access.

[20] The City and police received regular complaints of trespassing activity at the site.

BASIS FOR THE EMERGENCY ORDER

[21] CBO Purcell deposed that his decision to issue the emergency order on December 23, 2020 was based on:

(1) Inspections and findings contained within professional engineering reports identifying serious ongoing structural concerns, advanced deterioration conditions and the possibility of an imminent collapse of the hotel;

(2) The hotel owner’s inability to prevent trespassers from illegally entering the hotel, which created a significant danger to the public.

In his view, these circumstances posed an immediate and significant danger to the health and safety of members of the public, and therefore required emergency measures to be taken including the immediate controlled demolition and clean-up of the hotel.

[22] Section 15.10(1) of the Building Code Act allows the CBO, if satisfied that a building “poses an immediate danger to the health or safety of any person” to make an order requiring any work be “carried out immediately to terminate the danger” (emphasis added).

[23] Section 15.10(3) of the Building Code Act provides that the CBO may take any measures necessary to terminate the danger. He ordered demolition.

THE STANDARD OF REVIEW

[24] As set out in Ottawa (City) v. TKS Holdings Inc., 2011 ONSC 7633 at para. 56, “the decision of the CBO as to whether a building constituted ‘an immediate danger to the health and safety of any person’ is a question of fact, and therefore the appropriate standard of review is that of reasonableness.”

[25] At para. 63 the court clearly noted that the standard of review in an application under s. 15.10(7) to confirm an emergency order is one of reasonableness.

[26] Was it reasonable for the CBO to find that there was an immediate danger and was it reasonable for him to order demolition to terminate that danger?

CHAIN OF EVENTS

Heritage Impact Assessment June 15, 2017

[27] On June 15, 2017 a Heritage Impact Assessment was done by Architecture Unfolded for Haastown.

[28] The architect in this assessment reviewed two options for the property.

[29] Option number one was to restore the existing building shell and create a new building addition.

[30] This report stated that Haastown sought a restoration design but the results were “not very promising” as the inner building envelope was significantly decayed, the dimensions of the existing floorplates were not wide enough to house functional residential condominiums. The proposed addition, along with the restoration costs, was cost prohibitive.

[31] Option number two was demolition of the existing building and reconstruction of significant elements.

[32] This assessment looked at the option to demolish the existing building and partially reconstruct the “significant elements integrated into a new building complex.”

[33] The conclusion of this Heritage Impact Assessment was:

Without disregard for the heritage value of the decaying Preston Springs Hotel, it is critical to recognize that without prompt intervention the structure will soon fall into ruins or be the cause of tragedy due to its unsafe condition.

The option to restore and reuse does not offer a solution that would address all the technical issues and requires an economic investment that is an encumbrance to redevelopment.

The option to demolish and reconstruct significant heritage elements as part of a larger complex seems economically sustainable from a redevelopment perspective and requires the demolition of the existing structure. Given all of the preservation challenges this seems to be a suitable option.

Minimum Standards Order 2019

[34] In 2019 a minimum standards order was made by a property standards officer requiring an engineering report be completed to assess the building’s structural soundness. The report was to be prepared by an engineer qualified in the field specializing in heritage buildings and licenced in Ontario.

SBM December 16, 2019 Report

[35] Haastown complied with the minimum standards order by retaining Strik, Baldinelli Moniz (“SBM”) to provide the report of December 16, 2019. SBM’s conclusion was that the building was in poor structural condition and it was deteriorating at an accelerated rate. Some areas were structurally unstable, particularly in the west wing.

[36] They found that “the entire interior of the original building is gutted of all electrical, mechanical, and plumbing fixtures and all floor finishes…construction of the west addition was never completed…the metal decking had severe corrosion and did not appear structurally safe for walking.”

[37] They recommended the following work to be done immediately:

• permanently fasten close the balconies and consider complete removal;
• replace/reinforce the roof joists over the east one-storey room and support other non-bearing joists;
• block access to the west addition completely/make the stairs inaccessible;
• seal and waterproof the hole in the west addition basement which is a fall hazard and is collecting water and vegetation in the basement, ensure the suspended slab is temporarily supported with a steel post and block it from access;
• remove the 10-foot soffit which is directing water onto the existing exposed structural framing;
• remove the failing multi-wythe brick floor exterior west wall and rebuild or replace the wall and ensure the transition from the original building to the west addition is watertight.

[38] They recommended further work be done within one year:

• ensure the entire building is weather-tight (foundation, walls and roof);
• replace missing stones from front porch and repoint and repair the mortar joints; remove vegetation and roots extending through the rubble stone wall and piers;
• replace the wood beam at the fifth floor directly to right of main stairs;
• repair the seven-foot chain link fence around the perimeter or additional fencing.

[39] The engineers noted that “the above recommended repair work is extensive and does not necessarily cover all deficiency repairs required as many areas were not accessible for review.” Partial demolition of specific areas was recommended.

[40] Their conclusion was, “Due to the significant amount of work required to repair the building for occupancy, and the associated cost involved with these repairs, it is likely that demolition of the existing building and construction of a new building is a preferred option to achieve the long term structural stability, barrier free, parking and life safety features required by current building codes and standards.”

IRC January 13, 2020 Report

[41] On receiving the SBM report, the City retained an independent engineering firm to further investigate the building and to peer review the SBM report. They retained IRC Building Sciences Group (“IRC”).

[42] Their report echoed the findings of the SBM report and spoke directly to the heritage-potential salvage of the site finding there was little to be salvaged:

The building as it stands now is in very poor condition from a structural perspective given the fact that it has been vacant for years and exposed to the exterior in numerous locations which has led to an ongoing and pervasive deterioration of interior and exterior elements. This deterioration will accelerate rapidly in the next few years eventually leading to structural failure if no action is taken.

Given the current level of deterioration it is likely that much of the existing base structure is beyond salvage and will require replacement. This would include:

• Many of the wood elements some of which are undersized and potentially rotten with numerous indirect transfers;
• Rubble stone foundations which are losing much of the lime mortar which was used as a binder;
• Steel transfer beams and columns which are corroding;
• The entire west wing which is in an advanced state of corrosion.

On the interior there are few if any historical or architecturally significant elements remaining as much of the interior was gutted during the various renovation efforts. The vandalism and scavenging that has gone on since there was any positive activity at the site has further reduced the potential for historical restoration.

The exterior envelope has also been modified and now incorporates an EIFS overcall along with modern vinyl windows. Much of this material is now damaged to the point where total replacement is required.

[43] They also recommended the immediate repairs outlined in the SBM report including reestablishment of a secure perimeter with repair to fencing and hoarding and a regular monitoring of the site by a security company.

[44] They found that “the deterioration of the structural components of the building and the loss of most of the original architectural elements leaves little to be salvaged”; “restoration of the existing building shell presents significant and costly technical challenges which are likely cost prohibitive.”

[45] IRC concluded the existing structure was unsafe and potentially dangerous.

[46] IRC recommended these costs be redirected into a redevelopment of the site that architecturally is sympathetic to the original building.

IRC’s Assessment of Initial Costs

[47] SBM had stated that the initial costs were extensive and significant.

[48] CBO Purcell requested IRC to assess the costs of dealing with the immediate concerns and to make the building secure to prevent access to unauthorized persons, as well as making it safer for any authorized personnel.

[49] The immediate costs for securement and safety were in the range of $500,000 to $750,000.

[50] The cost to make the building weather-tight within one year (foundation, walls and roof) to diminish the rate and extent of deterioration would be in the range of $1,500,000 to $2,000,000 given the size of the building and the extent of the breaches in the building envelope.

[51] The annual costs for a security monitoring company would be in the range of $25,000.

[52] In his report to council, CBO Purcell noted that the Building Code Act gives him the authority to take such action as he considers necessary for the protection of the public and allows the municipality to have a lien on the land for the amount spent on renovation, repair, demolition or other such action.

[53] CBO Purcell attended to do his own on-site inspection.

[54] His conclusion was that based on the engineering reports, both with heritage experience, that these initial repairs were cost prohibitive and not recommended. He agreed with their finding that there was little to be salvaged of the original architectural elements and that costs be redirected to a redevelopment of the site that is architecturally sympathetic to the original building.

[55] He reported to council that:

Public safety is of paramount importance. Given the significant challenges technically, financially and security wise of restoring the building to a minimum standard of safety identified, and evidence of uncertain results, the Chief Building Official has determined that demolition is the appropriate action and will be issuing orders to the owner of the property immediately directing such action.

Order to Remedy an Unsafe Building

[56] Accordingly, on January 22, 2020, CBO Purcell issued an order to remedy an unsafe building pursuant to s. 15.9 of the Building Code Act.

[57] By that order the owner Haastown was required to apply for a demolition permit within two weeks; ensure compliance with s. 34 of the Ontario Heritage Act; and obtain a demolition permit and remove the structure. These steps were to be completed by June 29, 2020.

[58] Compliance with s. 34 of the Ontario Heritage Act required Haastown to seek City Council to repeal the heritage designation by-law respecting the building, as owners are not permitted to demolish designated heritage properties.

[59] CBO Purcell recommended council repeal the heritage designation to permit a demolition permit to be issued. He made this recommendation based on the two engineering reports noted above and on his determination that demolition was the appropriate action to be taken to address public safety.

[60] On January 28, 2020, City Council agreed and gave notice of their intention to repeal the building’s heritage designation.

[61] The ACO filed an objection, and the matter was referred on March 4, 2020 to the Conservation Review Board (“CRB”).

[62] The CRB would hold a hearing, provide recommendations to City Council, and then City Council would then decide whether or not to affirm the original decision to repeal the designation by-law.

[63] Haastown’s ability to comply with the order to remedy an unsafe building was suspended pending City Council hearing the recommendations determined by the CRB.

[64] The scheduling of this was delayed due to the pandemic.

[65] There was a pre-hearing of the CRB on October 21, 2020 and ultimately dates were agreed by counsel on December 23, 2020 for a three-day hearing to occur on April 26, 27, 28 of 2021.

Documentation and Salvage Plan of July 2020 by McCallum, Sather

[66] CBO Purcell meanwhile ordered Haastown to commission a documentation and salvage plan by accredited heritage professionals.

[67] Haastown retained McCallum, Sather to “complete the documentation report for Preston Springs Hotel and provide a salvage plan for its significant physical attributes.”

[68] They reviewed the building in its current condition to create a historic record and provide direction as to which items should be salvaged for re-use or sale. They identified:

• Entry fountain;
• Entry door;
• Lobby fireplace;
• Select millwork, doors and old growth timber.

[69] The report was not assessing the viability of the building’s structural rehabilitation.

Concerns of the Municipal Heritage Advisory Committee (MHAC), the Heritage Planning Advisory Committee (HPAC) and the Architectural Conservancy of Ontario (ACO)

[70] The MHAC, HPAC and the ACO expressed their concerns that there was still heritage value in the original structure of the building and, though costly, they recommended the owner examine all possible options to retain it.

[71] They recommended the owner pursue additional and alternate funding opportunities to assist in rehabilitating the site.

[72] They recommended tearing down only the building’s west portion which had no heritage value and “was deemed by the engineers to be the most structurally damaged part of the entire hotel.”

[73] They suggested that removing only the west addition would reduce the footprint and square footage by about 50 percent.

[74] They encouraged the retention of a heritage engineer or architect to determine the degree to which the original structure could be rehabilitated.

IRC November 17, 2020 Report

[75] The IRC engineer revisited the site and reported:

Although not quantitatively measured the main areas of concern previously outlined continue to deteriorate and the potential for structural collapse or injury to persons who are accessing the building remains very high. The owner stated that they continue to struggle to keep the building secure but that given the building’s notoriety trespassers in the form of vandals, scavengers, graffiti artists and urban explorers are finding ways to get in.

The Preston Spring Hotel continues to suffer from serious neglect and the deterioration noted in the previous reports by IRC and SBM will accelerate until the inevitable collapse of a portion of the structure. It is far better to have a controlled demolition on a building of this size than to allow for a haphazard failure. As such IRC recommends that efforts be made by the parties involved to allow for the immediate demolition of the structure.

SBM November 19, 2020 Report

[76] The SBM engineer also attended the site.

[77] In his report he reiterated that the building was unsafe to any occupants and was in danger of further partial collapse. He wrote that “Since the building is mostly gutted and shows little remaining heritage value,…[he] recommended the existing building be demolished as the costs to repair a building under such a state of deterioration are prohibitive.”

[78] On this site visit he noted further deterioration. Also, despite hoarding and chain link fencing around the entire building it was still not secure and members of the public were still trespassing by “forcefully gaining access to the empty building.”

Emergency Order December 23, 2020

[79] CBO Purcell had attended the site with the two engineers noted above in November 2020.

[80] Ultimately, CBO Purcell issued the emergency order to have the hotel demolished immediately and in a controlled manner by contractors retained by the City.

[81] Haastown was notified and the public were notified by a press release on December 24, 2020 that the demolition was to occur January 4, 2021.

[82] Before demolition the CBO had a demolition contractor salvage the heritage attributes noted by McCallum, Sather being the entrance door, fountain, stone wall window trim and selected millwork, bannisters from the main lobby staircase, the pilaster at the front entrance and mosaic tile and the stonework around the fireplace.

[83] In preparation for demolition, security was posted 24 hours a day, seven days a week. A metal construction fencing was set up around the entire hotel. Despite this additional fencing and 24/7 security personnel, trespassers were still accessing the dangerous site.

[84] The demolition proceeded ahead of schedule on December 31, 2020 to January 4, 2021.

Injunction December 31, 2020

[85] The ACO applied to this court, without notice to the City, on an urgent basis for an injunction to halt the demolition in light of the CRB hearing set for April 2021.

[86] In that application to the court, the ACO requested that the court waive the usual order that they give an undertaking as to damages if the injunction was not properly granted and compensation was owed to the responding parties.

[87] This court declined this relief. The ACO was directed that if they provided an undertaking as to damages then a temporary interim injunction would issue prohibiting demolition.

[88] As the demolition had already proceeded, there remained no utility in the injunction and the ACO did not provide the undertaking nor further pursue injunctive relief.

ASSESSING ADMINISTRATIVE DECISIONS FOR REASONABLENESSS

[89] The Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 2019SCC 65, [2019] 4 SCR 653 discussed how reasonable administrative decisions are to be made.

[90] At para. 13 the court wrote,

Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.

[91] At para. 102 the court stated,

To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”…. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. [Citations omitted.]

[92] Was there an “unreasonable chain of analysis” as noted in para. 87 of Vavilov?

[93] Did the decision “fall within a range of possible, acceptable outcomes defensible in fact and law”? See para. 87 of Vavilov.

[94] The Supreme Court directed that reviewing courts must keep in mind the principle that the exercise of public power must be “justified, intelligible and transparent”. See para. 95 of Vavilov.

[95] At para. 100 the court stated,

The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcoming in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.

[96] Accordingly, the onus of demonstrating the decision was unreasonable is on the ACO.

SUBMISSIONS OF THE ACO

[97] Initially the ACO took the position that the protections for a designated property under the Ontario Heritage Act bound the actions of the CBO to demolish an unsafe building.

[98] This argument was withdrawn as it became clear that the powers and responsibility of the CBO to seek protection of the public in an emergency overrode the concerns and requirements of the Heritage Act. They may act in the interests of public safety.

[99] The ACO submitted that the emergency order of CBO Purcell was unreasonable on the basis that:

(a) he failed to consider relevant factors;

(b) he considered irrelevant factors in his decision;

(c) he failed to follow common practice of other CBOs;

(d) he demonstrated bias and did not act independently;

(e) there were other criticisms of his actions as unreasonable.

(a) Failure to Consider Relevant Factors

[100] The ACO submitted that CBO Purcell failed to properly consider the designated heritage status of the hotel and that his focus was on the structural issues and trespass issues.

[101] They submitted that he should have considered that the “de-listing” of the designation was under appeal to the CRB.

[102] They submitted that he should have considered the suggestions of MHAC and HPAC to find options for remediation.

[103] It was submitted that he formed the decision that demolition was required and remained close-minded to other suggestions.

[104] On a full review of the record, it is abundantly clear that CBO Purcell was aware of the hotel’s heritage status. He was acting on the opinions and advice of heritage specialists that found remediation was not an option and that temporary repairs and securement of the site was cost prohibitive (over $2,000,000).

[105] There was no other expert evidence before CBO Purcell, nor before this court, that remediation was financially viable or even possible given the state of deterioration of the property. There is no contrary evidence to the findings of the heritage experts’ reports of actual site visits to this hotel.

(b) Consideration of Irrelevant Factors

[106] The ACO submitted that the costs of remediation was an irrelevant factor.

[107] They pointed to the ability of the City under s. 15(9) to go in and incur the costs of repair and maintenance and charge it back to the owner.

[108] Such a suggestion ignores the fact that the City in those circumstances must nonetheless act reasonably.

[109] The interim costs were conservatively estimated at over $2,000,000. To incur the temporary costs suggested, contrary to the advice of heritage specialists’ reports, would not be considered reasonable.

(c) Common Practice of Other CBOs

[110] The ACO pointed to other cases where there had been a number of orders for repairs of a property before demolition was ultimately performed.

[111] These are, however, anecdotal references to what has occurred regarding other properties. This court was not provided with evidence of the “usual pattern” before emergency orders come into play nor evidence that CBO Purcell fell below the standard of a CBO.

[112] This submission obliquely is critical as to how and why this property deteriorated so significantly since 1992. This court was not provided with evidence on this issue and much of it pre-dates both this CBO’s involvement as well as this current owner, Haastown. In particular, it is not relevant to the reasonableness of the CBO’s decision on December 23, 2020.

(d) Alleged Bias and Failure to Act Independently

[113] The ACO submitted that as the CBO did not undertake the costs of remedial steps and did not get other expert reports as suggested by MHAC and HPAC that he demonstrated an unreasonable closemindedness.

[114] Although it was alleged that he failed to act independently, this was unsupported in the evidence and ultimately withdrawn in submissions.

[115] The ACO submitted that the CBO failed to consider “a viable restoration alternative” involving a partial demolition of the deteriorated west addition which did not have historical significance. On the record before the CBO and before this court this was simply a suggestion, with no engineering report or assessment of the financial costs involved.

[116] This alternative suggestion was based on a narrow reading of the earlier reports that it was only the west wing that was deteriorated. It is clear that the engineers were assessing the original historic structure in their concerns and conclusion that total demolition was the recommendation. The CBO also considered partial demolition not to be an option based on his own experience.

(e) Other Criticisms of his Actions as Unreasonable

[117] The ACO properly pointed out that although CBO Purcell was concerned about the delay in the scheduling of the CRB hearing, he made no inquiries as to the status of the scheduling.

[118] He found out that the hearing would be four months later as of the time he made the emergency order on December 23, 2020.

[119] His evidence was that in light of the danger to the public, the persistence of the trespassers, the further deterioration that would occur going into another winter, and the opinions of the engineers meant that he “could not allow it to go through another winter.”

[120] The ACO pointed out that the engineers set out the immediate danger and risk to public safety as of November 17, 2020 but the CBO did not act until December 23, 2020 and moved the dates of demolition up earlier than originally planned.

[121] This delay was not explained in the evidence, rather the evidence supports that he should have acted much sooner to prevent injury or death in light of the determined trespassers. The delay does not make the emergency order less reasonable, however. I find that moving the demolition dates up earlier was dealing with the emergency situation which was already delayed.

[122] The ACO was critical that the City did not make its own efforts to secure the property in light the of failure of the owner Haastown to prevent breaches of the property. The evidence is that despite 24-hour surveillance and metal fencing provided by the City before demolition, there was still determined trespassing on the property into this unsafe building.

[123] The ACO submitted that the emergency order was unnecessary at the time in light of the province-wide lockdown “stay-at-home” order that had been made. As noted, the “determined trespassers” were not discouraged from acting illegally such that the emergency order was appropriate.

CONCLUSION

[124] Section 15.10 of the Building Code Act states that, if on inspection an inspector is satisfied that the building poses an immediate danger to the health or safety of any person, the chief building official may make an order requiring remedial repairs or other work to be carried out immediately to terminate the danger.

[125] The CBO is then required to apply to this court to confirm that such action taken under the emergency order was reasonable.

[126] The ACO was unable to provide any prior case where such an emergency order was not confirmed by this court as being reasonable.

[127] Nonetheless, the record has been fully reviewed to determine if this CBO acted reasonably in these circumstances. His decisions were well-informed by detailed reports of heritage experts who attended on site as well as his own site inspections. Complete demolition was recommended. He had to deal with a severely deteriorated historical building that was a danger to anyone walking through it and the determination of trespassers continuing to enter even with 24-hour surveillance in place.

[128] The evidence supports that this historical building was beyond saving on any reasonable basis and its risks to public safety had to be addressed on an urgent basis.

[129] I find that CBO Purcell properly determined that the hotel constituted an immediate danger, that he properly determined that complete demolition was required to terminate the danger and that he acted in accordance with his responsibility for public safety under the Act.

[130] Accordingly, I confirm the emergency order that was made.

ALTERNATE RELIEF SOUGHT BY THE ACO

[131] The ACO sought alternate relief if the court found that the emergency order was to be confirmed.

[132] The ACO sought the emergency order to be modified such that Haastown was to be ordered to prepare a new heritage salvage plan considering the comments and concerns of the City of Cambridge’s Planning Department and the MHAC.

[133] Both the applicant and the respondent submit that this requested relief is moot in light of the demolition of the building.

[134] The ACO submitted that the court may use its discretion to decide a moot appeal, citing 1672736 Ontario Inc. v. Savini, 2022 ONSC 6177.

[135] Nonetheless, with the completed demolition of this project, the order sought would be unable to be complied with.

[136] Accordingly, this is not a case where it would be appropriate to exercise my discretion on a moot request.

COSTS OF DEMOLITION

[137] The materials support the costs incurred by the City as being necessary and reasonable in the amount of $349,338.27.

[138] Neither Haastown nor the ACO dispute that these were properly incurred to eliminate the danger to the public and are recoverable from Haastown.

[139] Accordingly, I confirm that the amount of $349,338.27 is recoverable by the City to be paid by Haastown.

COSTS OF THE APPLICATION

[140] If the parties are unable to resolve costs they may serve and file written submissions. Such submissions are not to exceed two pages double-spaced but may attach applicable offers to settle and bills of costs.

[141] Submissions are to be emailed to St.Catharines.SCJJA@ontario.ca.

[142] The CBO and Haastown may serve and file submissions by December 6, 2023.

[143] The ACO may serve and file submissions by December 13, 2023.

[144] If required, CBO and/or Haastown may serve and file a one-page reply by December 20, 2023.

[145] Failing receipt of submissions by December 21, 2023 the court will consider costs to have been resolved.

M.J. Donohue, J. Released: November 29, 2023