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.

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.