Barnet H. Kussner

The appellants, owners of several hookah lounges in the Regional Municipality of Peel, challenged by-law No. 30-2016, which prohibits waterpipe smoking in enclosed public places, enclosed workplaces, and restaurant or bar patios.

The appellants argued the by-law was ultra vires the Region, conflicted with provincial occupational health and safety legislation, and was enacted in bad faith.

The application judge dismissed the application, finding the by-law was a valid exercise of municipal authority aimed at protecting public health and safety.

The Court of Appeal upheld this decision, dismissing the appeal and awarding costs to the respondent.

On appeal from a Divisional Court decision, the Court of Appeal considered whether the Ontario Municipal Board (OMB) had jurisdiction to impose a 25 percent cap on the alternative parkland dedication requirement under section 42 of the Planning Act.

The Town of Richmond Hill had adopted an Official Plan policy allowing for parkland dedication at a rate of one hectare per 300 dwelling units.

Developers challenged this policy, and the OMB imposed a 25 percent cap on the amount of land required to be conveyed.

The Divisional Court set aside the cap, finding the OMB lacked authority to impose it.

The Court of Appeal upheld this decision, holding that the legislature has given municipalities exclusive authority to determine the rate under section 42(3), subject only to the requirement that an Official Plan contain specific policies dealing with parkland provision and the use of the alternative requirement.

The OMB's role is limited to reviewing whether such policies are appropriate and accord with provincial policies, not to set or cap the rate itself.

The applicant brought a motion to consolidate or hear together two applications seeking the removal of a mayor and a councillor for alleged breaches of the Municipal Conflict of Interest Act.

The court dismissed the motion, finding that one of the applications had already been fully argued and was no longer 'pending' as required by Rule 6.01.

Furthermore, the court held that the applications required individualized reviews of separate impugned votes, meaning there were no common material facts that would justify joinder or risk inconsistent judicial findings.

The applicant sought declaratory relief that it was exempt from a parkland levy imposed as a condition of obtaining a building permit for redevelopment of a restaurant on municipal lands.

The municipality argued the application improperly circumvented the statutory appeal mechanism under s. 25(1) of the Building Code Act, 1992, which provides a 20‑day appeal period from decisions of a chief building official.

The court held that the proper procedure was a statutory appeal, not an application for declaratory relief, and that the applicant had failed to pursue the appeal within the prescribed timeframe.

The court declined to convert the application into a statutory appeal or extend the appeal deadline, finding the delay unreasonable and prejudicial to the municipality.

The application was dismissed and costs were awarded to the respondent.