Michael Saul Polowin

The applicant sought a declaration that Schedule Y5 of a subdivision agreement, which mandated the perpetual operation of a golf course on its property, was ultra vires, invalid, and unenforceable.

The court rejected all of the applicant's legal arguments, finding that the municipality had statutory authority to enter into the agreement, the agreement was enforceable as a contract binding on successors, it did not create contingent interests in land subject to the rule against perpetuities, and it did not amount to a constructive taking.

However, acknowledging the golf course's financial unviability, the court adjourned the application for 120 days and directed the parties to engage in mediation to seek a resolution under the agreement's amendment clause.

The appellant challenged the legality of a by-law passed by the City of Kingston imposing impost fees for water and wastewater infrastructure under the Municipal Act, 2001.

The appellant argued that such fees could only be imposed under the Development Charges Act, 1997 (DCA), or alternatively, if under the Municipal Act, 2001, then subject to the procedural protections of the DCA, including a right of appeal to the Ontario Municipal Board (OMB), which the City could not provide.

The appellant also argued the by-law was illegal under s. 394(1)(e) of the Municipal Act, 2001, as water and wastewater are natural resources.

The Court of Appeal dismissed the appeal, affirming that municipalities have dual legislative regimes for imposing development fees, and the Municipal Act, 2001, provides a valid basis for the impost fees.

The court clarified that s. 15(1) of the Municipal Act, 2001, does not require importing DCA procedural protections, as the two statutes confer different powers and have distinct review mechanisms.

Furthermore, the court found that s. 394(1)(e) does not prohibit fees for infrastructure that transports water and wastewater for ratepayers' benefit.

The appellant sought leave to appeal a decision of the Ontario Land Tribunal that upheld an Official Plan Amendment and Rezoning approved by the City of Ottawa.

The amendments permitted the development of a warehouse and e-commerce centre on lands adjacent to Highway 416.

The Divisional Court denied leave to appeal, finding no extricable error of law of sufficient importance to warrant appellate review.

This endorsement addresses the costs arising from an unsuccessful motion for leave to appeal brought by The Corporation of the Town of Niagara-on-the-Lake (NOTL).

The responding parties, Tweed Farms Inc. and 2470689 Ontario Inc., sought costs.

Tweed Farms claimed increased costs due to NOTL's abandoned positions, the expedited nature of the motion, and challenges related to virtual hearings during COVID-19.

NOTL argued the claimed amounts were excessive.

The court applied principles of proportionality and reasonable expectations, adjusting counsel rates and acknowledging the impact of NOTL's litigation conduct.

The court awarded Tweed Farms Inc. $25,875 and 2470689 Ontario Inc. $5,940, both on a partial indemnity basis.

Following an unsuccessful motion for leave to appeal, the responding parties sought costs.

Tweed Farms Inc. sought partial indemnity costs of $36,701.06, arguing the moving party's unreasonable positions and the expedited nature of the proceeding increased costs.

The moving party argued the amounts were excessive.

The court awarded Tweed Farms Inc. $25,875 and 2470689 Ontario Inc. $5,940, finding these amounts reasonable and proportionate.

The Town of Niagara-on-the-Lake sought leave to appeal an interlocutory procedural order of the Local Planning Appeal Tribunal (LPAT) regarding appeals of an interim control by-law restricting cannabis-related land uses.

The Divisional Court dismissed the motion for leave to appeal as premature.

The court held that there were no exceptional or extraordinary circumstances to justify departing from the general rule against fragmenting administrative tribunal proceedings by hearing appeals from interlocutory decisions.

The appellants sought to operate a commercial paintball facility in an area zoned as a 'Private Park'.

The motion judge determined that the facility fell under the definition of a 'Place of Recreation' rather than a 'Public Park' or 'Private Park', and thus required a zoning by-law amendment as a new commercial use.

The Court of Appeal found no error in the motion judge's sensible conclusion and dismissed the appeal.

The respondent municipality was successful in defending an application and sought costs of $7,689.00 on a partial indemnity basis.

The applicants argued costs should be denied because the respondent introduced facts in its factum regarding the existence of private parks that were not included in the Agreed Statement of Facts.

The court rejected this argument, noting the applicants had addressed the issue and could have easily verified the public record prior to the hearing.

The court awarded the respondent its claimed costs of $7,689.00.

Property owners sought declarations that a proposed paintball facility on land zoned “rural” was a permitted use under a municipal zoning by-law.

The municipality maintained the proposed use constituted a commercial recreational activity requiring rezoning.

Applying modern principles of statutory interpretation to municipal by-laws and considering the zoning by-law within the broader framework of the municipality’s Official Plan, the court held that a “Private Park” under the by-law referred to passive recreational open space intended for limited private use rather than commercial recreation offered to the public.

The court concluded the proposed paintball facility more closely resembled a “Place of Recreation” where recreation is provided for a fee and therefore constituted a new commercial use.

As new commercial uses in the rural designation required a zoning amendment, the applicants’ request for declaratory relief was refused.

The moving parties sought leave to appeal an interlocutory decision of the Ontario Municipal Board (OMB) regarding the validity of certain provisions of a City of Ottawa zoning by-law.

The OMB had found some provisions valid, some invalid, and sent others back to the City for reconsideration.

The Divisional Court dismissed the motion for leave to appeal, finding that while the issue was important and the standard of review was reasonableness, the appeal was premature because the final language of the by-law had not yet been settled by the City's reconsideration.

The City of Ottawa sought leave to appeal an Ontario Municipal Board decision that repealed Section 3 of its Comprehensive Zoning By-Law.

The Board had found that the by-law improperly restricted property owners' rights to continue legal non-conforming uses after voluntary repairs or renovations, contrary to section 34(9)(a) of the Planning Act.

The Divisional Court determined the applicable standard of review was reasonableness and found no error in the Board's conclusion that the by-law frustrated the normal evolution of legal non-conforming uses.

Leave to appeal was dismissed, though the parties consented to restore certain unrelated subsections of the by-law.