introduction

[1] The Applicant, 341868 Ontario Limited (“341 Ontario”) is the registered owner of a property located at 22610 Leslie Street, East Gwillimbury (“Site”). The other Applicant, 1772853 Ontario Inc. (“177 Ontario”) operates a number of sites in the Greater Toronto Area that import and export clean fill.

[2] The Respondent Corporation of the Town of East Gwillimbury (“Town”) is a municipal corporation under the laws of Ontario and a lower-tier municipality for the purposes of the Municipal Act, 2001, S.O. 2001, c. 25 (“Municipal Act”).

[3] On November 26, 2013, the Applicants together submitted an application for a fill permit (“Application”) pursuant to the Town’s By-law No. 2013-066 (“Fill By-law”). The fill permit they applied for is a “site alteration permit” required to run a commercial fill operation on the Site (“Fill Permit”).

[4] The Application proposed that the Site would receive a maximum of 1,007,100 cubic metres (m³) of clean fill over the life span of the Fill Permit.

[5] The Applicants state that the Town has refused to issue the requested Fill Permit unless it agrees to pay a “fee” of $1.00 per m³ of clean fill (“Fee”).

[6] The Applicants seek a declaration that Town’s proposed Fee is an illegal tax not authorized by the Municipal Act and ultra vires the Town’s powers.

[7] The Applicants also seek a mandamus order compelling the Town and/or the Town's General Manager of Community Programs and Environmental Services to issue to the Applicants the Fill Permit forthwith.

[8] For the following reasons, I find this application is premature and therefore dismissed.

background

[9] The Town has regulated fill since 2006, prohibiting fill import and placement without a permit. In 2010, the Town amended their old fill by-law and passed a new one, 2010-055 (“2010 By-law”), to remove certain appeal rights to the Ontario Municipal Board, and to address issues relating to the Town’s cost recovery, and environment and infrastructure protection. The 2010 By-law also streamlined and simplified its application process for small projects. This process included a restructured fee regime.

[10] Concerns arose about the 2010 By-law, notably, road and infrastructure challenges, soil/fill material quality, operational challenges, environmental impact issues, and the municipal service fee. As a result, the Town decided to revise their fill by-law. To do so, it embarked on a public consultation process and developed an operational guideline to help establish better fill and site operations. In this process, the Town established a municipal service/tipping fee as one possible initiative to address their concerns.

[11] In 2013, the Town enacted their new and current Fill By-law. The Fill By-law and the operational guidelines provide a comprehensive approval process to control fill permits and resulting fill operations in the Town’s municipality. Part of that approval process includes the payment of the fees referred to in the Schedule A to the Fill By-law. Schedule A lists various processing fees and states that the “Municipal Tipping Fee”, is “to be determined by the Town as part of the application process”.

[12] The Fill By-law requires that a “Qualified Person” (QP) review every fill permit application to ensure it meets environmental protection standards.

[13] On January 29, 2015, Town staff reported to the Town Council that Cole Engineering, the Town’s QP, had reviewed the Application and requirements and confirmed that it met the Fill By-law requirements and was complete. The Town’s consideration of the Applicants’ Application continued as Town staff resumed processing and evaluating the Application and its supporting reports. In particular:

a) A Public Information Centre was held on February 26, 2015;

b) Staff reported to the Town Council on May 19, 2015, identifying the following next steps to be taken:

i. Staff will continue to process the Application in accordance with the Fill By-law;

ii. The Applicant(s) will incorporate feedback from the Town Council into the plans as appropriate;

iii. Should Town Council approve the fill agreement in the future, staff will issue the Fill Permit in accordance with the Fill By-law;

iv. Comments from the Town’s QP regarding the hydrogeological study, and civil works, will be incorporated into the agreement for future consideration by the Town Council; and

v. With input from Community Infrastructure and Environmental Services staff, the Town’s solicitor will draft the fill agreement for the Council's future consideration (“Fill Agreement”).

[14] While the Town continued to process the Application, they provided the Applicants a draft of their proposed Fill Agreement—noted in (b)(v) immediately above—and detailed comments on the Applicant’s fill management and erosion control plans.

[15] On May 24, 2016, the Town’s peer review consultant provided comments to the Applicants on their fill management plan. The comments were technical in nature and directed at ensuring that the risks of the proposed commercial fill operation were properly mitigated.

[16] The Town’s comments identified a number of outstanding matters that had to be resolved before a final Fill Agreement could be finalized between the Applicants and the Town, and so the Town could be satisfied that the Fill Permit should issue. The Town lists the outstanding matters in the identified documents as follows:

Fill Management Plan:

(i) Monitoring locations (on-site and off-site);

(ii) Groundwater Quality Monitoring Parameters;

(iii) Groundwater Quality Triggers;

(iv) Duration of Post-Filling Groundwater Monitoring (Quality and Quantity);

(v) Audit Testing of Fill (Frequency);

(vi) Audit Sampling and Delineation/Removal of Impacted Fill;

(vii) Locating Dumped Fill;

(viii) Source Site Sampling; and

(ix) Topsoil Acceptance and Testing Frequency and Parameters

Erosion and Sediment Control Plan:

(i) Need for CIESC Qualified Inspector;

(ii) Timing for Repairs to ESC measures;

(iii) Cleaning Mud from Leslie Street;

(iv) Rock Check Dams and Details Shown on Drawing;

(v) Measures Adjacent to Mr. Evan’s Property; and

(vi) Clarification of Fill Volume.

[17] On August 10, 2016, the Town’s Director of Engineering, Paul Neuman, attended a meeting with Jay Fieger, 177 Ontario’s president and sole shareholder. The purpose of the meeting was to discuss and resolve the outstanding issues noted above. At the end of the meeting, the parties agreed to continue their discussions.

[18] On August 18, 2016, the Applicants delivered a revised fill management plan to the Town that failed to address all of the Town’s concerns. The Applicants gave the Town a revised Fill Agreement on September 28, 2016. It included numerous proposed amendments that were not acceptable to the Town staff.

[19] On October 17, 2016, Mr. Fieger met with the Town’s Chief Administrative Officer and Mayor. At this meeting they discussed 12 matters (set out below) that had to be resolved before the Fill Agreement could be concluded. These matters were still outstanding when Mr. Neuman swore his affidavit on March 2 , 2017:

(i) Section 18: Inspector and Inspector Access;

(ii) Section 22: Securities;

(iii) Section 23: Fees;

(iv) Section 24: Quarterly Reports;

(v) Section 25: Topographic Surveys and discrepancy with Quarterly Reports;

(vi) Section 31: Breach of Agreement and Dispute Resolution;

(vii) Section 32: Drawing upon Letter of Credit;

(viii) Section 35: Indemnity;

(ix) Section 36(B): Pollution Liability;

(x) Section 40: Requirement to Carry Additional Insurance;

(xi) Section 47: Severability; and

(xii) The Fill Management Plan.

[20] In a letter dated October 31, 2016 (the “Letter”), the Town’s solicitor advised the Applicants that the Fill Agreement was nearing completion but substantial work was required to complete the fill management plan. Among the list of outstanding “deliverables” was confirming setting the Applicants’ security at $250,000, accepting the Fee, providing the Town unrestricted access to the Site and a confirmation of testing requirements.

[21] The Letter clarified that the Fee was required to cover the Town’s costs to oversee and administer site alterations town-wide. This included costs for the Municipal Fill Inspector, his truck, fuel, and maintenance to actively monitor the fill activity, time of Town staff to support the Inspector, road deterioration from truck traffic, soil contamination issues, nuisance issues such as mud noise and dust, and any other issues that could not be charged to an active fill site.

[22] The Applicants did not reply to this Letter. There is no evidence that the Applicants took any further steps to comply with any of the outstanding matters. Instead, the Applicants issued this application.

The Application is premature

[23] Courts are reluctant to hear appeals or applications from interim or interlocutory orders of administrative decision makers for the same reason that they are reluctant to hear judicial review proceedings before the administrative decision making process has ended. Interim challenges fragment the administrative proceeding and often increase costs. The same concerns arise in the context of an appeal. Courts have held that the right to appeal a “decision or order” of a board or tribunal is limited to an appeal of a final order: see, for example, Roosma v. Ford Motor Co. of Canada Ltd., [1988] O.J. No. 3114 (Ont. Div. Ct.) at para. 26; Rudinskas v. College of Physicians & Surgeons (Ontario), 2011 ONSC 4819, 285 O.A.C. 218 (Div. Ct.) at paras. 72-73. I see no reason to take a different approach in this case. The same principles apply.

[24] The Applicants argue that they have complied with the Fill By-law. They argue that because the QP confirmed their compliance with the Fill By-law, their application is not premature. I disagree.

[25] The above review of the evidence demonstrates that the parties are still negotiating the terms of the Fill Agreement and the fill management plan. Many significant issues remain outstanding.

[26] Eventually the Town will finalize its requirements for the Fill Agreement and the fill management plan. The Applicants will either comply or not. Finalization of these important documents could have an impact on the amount of the Fee that the Town seeks to impose. This is because some of the outstanding issues deal with steps that the Town will have to take during the Site’s operation to ensure, for example, that environmental issues are addressed.

[27] The Applicants are seeking a mandamus order directing the Town to issue a Fill Permit to them. The Town argues that the remedy of mandamus is unavailable because the Town has the discretion to issue permits in their jurisdiction.

[28] However, if such remedy is available, Fill Permits are only issued when the Town is satisfied that the applicants have fulfilled all requirements of the Fill By-law. As a result, these Applicants are asking for relief that is not available at this point in time.

[29] Section 5.1 of the Fill By-law expressly gives the Town discretion to impose conditions on an applicant, both before and after Fill Permit’s issuance.

[30] Section 5.3 of the Fill By-law states that the General Manager (for the Town) shall issue a Fill Permit when “all other permits, agreements and documentation have been received to the satisfaction of the Town”.

[31] It is clear from the evidence that the Applicants have not responded to the various outstanding matters. The General Manager has not been satisfied as section 5.3 requires.

[32] The issue of when prematurity will bar a mandamus remedy was considered in Apotex Inc. v. Canada (Attorney General), [1993] F.C.J. No. 1098. That court stated that there must be a compelling reason to dismiss an application for mandamus because it is premature. The court provides the following guidance on when it is appropriate. Quoting from Karavos v. Toronto (City), [1948] 3 D.L.R. 294 (Ont. C.A.) at p. 207, the court in Apotex states that the party seeking the relief must have a “a clear legal right to have the thing sought by it done in the manner and by the person sought to be coerced”. Further, at para. 51, the court stated that “[a]n order of mandamus will not lie to compel an officer to act in a specified manner if he or she is not under an obligation to act as of the hearing date.”

[33] At this point in time, the Applicants do not have “a clear legal right” to have the Fill Permit issued and the Town is “not under an obligation” to issue this Fill Permit.

[34] I appreciate that the Applicants refuse to pay the Fee that the Town requests because they say that it is a tax. The Town disputes this position. The Applicants want a court ruling on whether the Fee is a tax or not. They say that the court should provide this ruling even though a mandamus order cannot issue in these circumstances. To proceed as requested would fragment the process between the parties. The evidence in this dispute will continue to evolve as the Applicants continue to fulfill the outstanding matters that the Town requested. The issue is best resolved on a full record before the court.

[35] Aside from the Fee, there is no evidence that the Applicants have refused to comply with the outstanding matters. The outstanding matters must be fulfilled to the General Manager’s satisfaction.

[36] Counsel for the Town confirmed in court that the Fee issue can be left for the court to decide, but only when all other matters are resolved in accordance with the Fill By-law.

[37] In conclusion, this application is premature and is dismissed. This is without prejudice to the Applicants’ right to bring a new application in the future.

[38] If the parties cannot agree on costs, they shall agree on a timetable for exchange of brief written cost submissions and file them with the court by July 23, 2018.

___________________________ C. Horkins J.

I agree

Fitzpatrick J.

I agree

King J.

Date of Release: June 28, 2018

2018 ONSC 4094

DIVISIONAL COURT FILE NO.: DC-18-1086-JR DATE: 20180627

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Horkins, Fitzpatrick, King JJ

BETWEEN:

1772853 Ontario Inc. and 341868 Ontario Limited

Applicants

The Corporation of the Town of East Gwillimbury

Respondent

REASONS FOR JUDGMENT

C. Horkins J.

Date of Release: June 28, 2018

1772853 Ontario Inc. v. The Corporation of the Town of East Gwillimbury, 2018 ONSC 4094

Case Summary

introduction

background

The Application is premature

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 2

Legislation 1