Kristin Musczynski

The Plaintiffs sought costs after successfully obtaining partial summary judgment, which found a municipal by-law's fee schedule for fill material to be ultra vires.

The Defendant argued for no costs due to divided success or a reduction in quantum.

The court found that success was not divided, as the Plaintiffs succeeded in striking down the fee structure, and awarded costs on a partial indemnity basis, after reviewing and deducting certain legal fees and disbursements.

The plaintiffs brought a motion for partial summary judgment to determine if a municipal by-law prescribing permit fees for the importation of fill material was, in substance, an ultra vires tax.

The court found that the defendant municipality failed to establish a nexus between the fees charged and the actual or estimated cost of administering the regulatory scheme, despite being given an additional opportunity to provide evidence.

Consequently, the fee schedule was declared ultra vires as an unauthorized tax and was severed from the by-law, with the remainder of the by-law remaining in full force and effect.

The plaintiffs brought a motion for partial summary judgment seeking declarations that a municipal fill by-law did not apply to their property containing an abandoned gravel pit and aerodrome.

The court held that the summary judgment process was appropriate and that it could grant judgment adverse to the moving party where the evidentiary record permitted determination of the legal issues.

Interpreting the Municipal Act, 2001 and the Aggregate Resources Act, the court found that the abandoned pit did not fall within statutory exemptions applicable to licensed or operating pits and that the municipal by-law regulating the dumping of fill therefore applied.

The court also rejected arguments that the by-law was constitutionally inapplicable to the aerodrome under interjurisdictional immunity, relying on appellate authority confirming that municipal fill by-laws aimed at environmental protection do not trench on the core of federal aeronautics power.

Partial summary judgment was effectively granted in favour of the municipality on the legal issues raised by the motion.