When we last looked in on the Sutherland Saga, one question remained unanswered. Is the four-storey structure looming over the downtown core unsafe?
After a day-long hearing Friday at the Elgin County Courthouse – in which lawyer Valerie M’Garry, representing owner David McGee, and John Sanders, representing the city’s chief building official Chris Peck, parried over the definition of unsafe and is there a definition of a safe structure – little headway was made in what has become a dizzying debate over semantics.
And, as was the case on the opening day of the hearing a week ago, it was Justice Peter Hockin who dominated proceedings. Pondering aloud at one point, “What if this place is not insurable from a liability point of view?”
To backtrack for a moment, the purpose of the two-day hearing is to get down to business and deal with the decision of a three-member court of appeal panel handed down last month in which it ruled in the city’s favour, advising a lower court erred in its determination last September that a notice issued in March of 2016 warning of demolition of the four-storey structure for failure to comply with a previous work order was null and void.
Friday, it was M’Garry’s turn to pitch her client’s case to prevent the city from levelling the structure dating back to 1913.
It didn’t take long for Hockin to challenge M’Garry after her assertion the edifice does not present a safety risk because “the building is vacant, it’s used for nothing.”
“Buildings are not used for nothing,” shot back Hockin. “Buildings are not in this world for the purpose of being repaired.”
“How can it be defined as unsafe when it is a vacant building?” responded M’Garry. “There is no normal use for the building.”
Taking the bait, Hockin asked “Is it to be a monument to something? It can’t have no use. Otherwise we’re talking nonsense here. It’s not a monument . . . it’s not a bird house . . . its use is to be repaired?”
Undaunted, M’Garry soldiered on.
“There are no persons in the normal use of the building.”
She was attempting to argue since the building is vacant and has no current use, it can’t be deemed unsafe.
“It is an abandoned building in any reasonable sense,” countered Hockin. “If he (McGee) was going to repair it, it would have happened a long time ago. It just sits there. I gave Mr. McGee an order in 2008.”
A reference to Hockin overturning a ruling from Justice David Little that gave the city the green light to demolish the Sutherland Press building, with the proviso McGee undertake remedial action.
M’Garry’s only response was to reference her client’s very “impoverished” state in 2008.
“It is not an abandoned building,” she challenged. “It is a building that has suffered from the owner’s financial ability to re-purpose the building.”
And that, stressed M’Garry, has been exacerbated by the actions of the city.
“And that doesn’t make the building unsafe.”
On several occasions, M’Garry referenced engineering reports undertaken on McGee’s behalf that concluded “the building was in no immediate danger of collapse.”
“A point Mr. Peck agreed with,” M’Garry pointed out.
She later noted. “Peck agreed the building can’t be demolished unless it meets the definition of unsafe.”
“Can it be that it just goes on forever?” interjected Hockin. “Are the people of the city just supposed to wait and wait and wait? Time goes on and time goes on and time goes on. It can’t be there is no remedy.”
Noting his knowledge of the insurance industry, Hockin wondered aloud if McGee would be able to obtain liability insurance for the building, given its state of health.
“That goes to the heart of the matter,” stressed Hockin.
Or is it a case of, “When I’ve got some money I’ll do something about it,” he added.
Returning to the work orders issued against her client, M’Garry advised “Peck was only concerned about falling brick. If that is the level of danger to the public, does that justify demolishing the building?
“It may be inconvenient to the public, but that doesn’t warrant demolition. It doesn’t warrant the city prohibiting Mr. McGee from turning this building into something that would benefit the city.”
Following a lengthy rebuttal from Sanders in which he stressed “they (McGee) have not submitted information that would contradict Peck’s assessment the building is unsafe,” Hockin deftly attempted to steer the city’s legal counsel away from introducing financial information which had little reference to the physical health of the building.
In wrapping up a long day, Hockin aptly observed “The hardest thing to do is turn to the last page.”
Based on Friday’s proceedings, we are likely not on the last chapter – let alone the last page – of the Sutherland Saga.
Hockin, who will be presiding over a couple of trials in the coming weeks, advised he will submit a written determination some time after their conclusion.
“This is a complicated case. There is a huge amount of material. We have to be careful of judges stepping into the shoes of building officials.”
ROOM FOR ONE MORE
In March we pondered whether the downtown corridor could support another retail grocery store. Well, the answer from the pundits is yes, it can.
In a report to council Monday, council is being asked to approve zoning bylaw amendments to permit Gyulveszi Holdings to operate a retail food store at 780 Talbot Street, currently the home of Giant Tiger.
From 1954 to 1999, the site was occupied by A&P.
The Giant Tiger lease expires this year and several traditional food store operators have expressed an interest in the 23,176 square foot building that includes 115 parking spaces. A future expansion in 2020 could result in a total space of 30,000 square feet. By way of comparison, Freshco at 1010 Talbot Street is 31,030 square feet in size.
Early in the process, Gyulveszi Holdings was advised a retail market analysis would be required and they were also told the city would want its retail market consultant to undertake a peer review.
That review determined “sufficient market potential exists to support the proposed supermarket by 2019 and any impacts to the existing supermarkets are minimal.”
The review concluded, “the proposed supermarket is in a good location, supporting key services for the downtown, and would help to improve the level of food shopping service and choice available to existing and future residents and employees of St Thomas and the surrounding market area.”
At a public meeting on May 8, a representative of the CASO station expressed concerns about preserving views of the iconic structure from Talbot Street, given the future expansion, and the possibility of more direct access to the station from the Manitoba intersection.
The two parties were to meet to work out details.
A LOVE/HATE RELATIONSHIP
If you live in the Lake Margaret area or regularly visit Waterworks Park, you know how much of a problem Canada Geese can be. In the former case, the birds can turn your life into a misery.
It has become so bad, one resident last year wrote to Mayor Heather Jackson with the following invitation.
“Feel free to come by lake Margaret Trail anytime you want – perhaps you’d like to have a picnic on my lawn before I throw the poop on the road!!!!”
The city’s animal welfare committee, under the guidance of Lois Jackson, has submitted a pair of reports for council’s attention Monday, one dealing with mitigation of the pesky geese that can live as long as 25 years, and the second with the harm we can inflict on them with what we instinctively love to feed them.
What many may not realize is Canada Geese are protected under the Migratory Birds Convention Act, making it illegal to disturb, damage, relocate or destroy the nest or eggs of the birds.
In their report to council, the animal welfare committee advises while there is no one solution to discourage the birds, deterrent techniques can be applied to encourage the geese to nest and feed elsewhere.
One tactic is to make potential nesting sites less attractive to geese, who love grassy areas next to water sources.
This can be done by allowing grass at water’s edge to grow longer as they prefer manicured lawns. Combine this with erecting brick walls or low fences to keep the young birds from accessing the shoreline.
And then there are “scare” tactics, including noisemakers, strobe lights, recorded distress calls and the use of trained dogs to disturb the birds when they first arrive to settle on a property.
Easier said than done.
At a recent reference committee meeting dealing with the city assuming ownership of Lake Margaret, Ross Tucker, director of parks, recreation and property management, indicated geese control efforts at Waterworks Park appear to have had little impact.
The second report touches on our love/hate relationship with the iconic birds. Specifically a favourite summer pastime of feeding bread to ducks and geese in city parks.
An innocent enough act – other than it generally attracts many other birds including bold and annoying gulls – that is actually harmful to the health of these waterfowl.
Apart from being fattening, it lacks the nutrients they need, is difficult to digest and rotting bread can pollute water sources and attract rodents.
The committee is recommending staff erect signs in city parks where waterfowl are present.
Should part of the strategy also be to not feed the birds in the first place, especially around the shore of Lake Margaret. A move likely much appreciated by residents.
MARK THE CALENDAR
Council will hold a special meeting this Tuesday (June 6) to discuss the city’s community strategic plan, at which time members will discuss objectives and priorities.
Also up for discussion, performance measures relating to the city’s business and operations along with potential impacts on the 2018 budget.
Following that, a discussion will be held delving into creative ideas/projects/initiatives which may be considered to shape the future of the city.
The meeting, which is open to the public, is scheduled for 4:30 p.m. in the Carnegie Room at the St. Thomas Public Library.