Waring’s Creek Improvement Association v. The Corporation of the County of Prince Edward et al., 2026 ONSC 3977

CITATION: Waring’s Creek Improvement Association v. The Corporation of the County of Prince Edward et al., 2026 ONSC 3977

DIVISIONAL COURT FILE NO.: DC-26-00000001-0000 DATE: 2026/07/07

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

WARING’S CREEK IMPROVEMENT ASSOCIATION

Appellant

– and –

THE CORPORATION OF THE COUNTY OF PRINCE EDWARD

2422092 ONTARIO LIMITED

Respondents

Peter Pickfield, Colin Léger, for the Appellant

Jennifer Savini, Daniel J. Querques, for the Respondent the Corporation of the County of Prince Edward

Mark Pedersen, for the Respondent 2422092 Ontario Limited

HEARD at Ottawa by Zoom: June 12, 2026

Labrosse J.

ENDORSEMENT

Introduction

1This motion concerns whether a proceeding commenced in the Divisional Court should be transferred to the Superior Court of Justice pursuant to s. 110 of the Courts of Justice Act.

2The Applicant, the Waring’s Creek Improvement Association (“Waring’s”), seeks an order transferring its application to quash two municipal by-laws relating to a zoning by-law amendment and a draft plan of subdivision approval from the Divisional Court to the Superior Court.

3The respondents, the Corporation of the County of Prince Edward (the “County”) and 2422092 Ontario Limited (“242 Ltd.”), oppose the motion and seek its dismissal.

4For the reasons that follow, the motion is dismissed. This application lacks merit because the illegality is purely procedural in nature. There is no substantive illegality to the by-laws adopted by the County and as such, I exercise my discretion to deny the transfer request and allow the provisions of s. 273(5) of the Municipal Act, 2001 to cure the purported illegality.

Factual Background

5The underlying dispute arises from municipal approvals granted in respect of a proposed residential subdivision known as “Cold Creek” consisting of approximately 900 residential units. The planning applications included a zoning by-law amendment and a request for approval of a draft plan of subdivision (the “Applications”).

6The relevant approvals proceeded as follows:

i. On October 22, 2024, County Council refused the Applications.

ii. On November 8, 2024, the developer appealed that refusal to the Ontario Land Tribunal (“OLT”).

iii. Between November and February 2025, the 242 Ltd. and the County negotiated certain additional elements to the Applications which included conditions that allowed for Waring’s to be consulted.

iv. On February 11, 2025, Council reconsidered and approved the Applications and passed two municipal by-laws, one for the zoning by-law amendment and one for the approval of the draft plan of subdivision approval.

v. On September 17, 2025, the developer withdrew its OLT appeals.

7There is no dispute that at the time of the adoption of the by-laws that approved the Applications, the jurisdiction to make that decision lied with the OLT as a result of the appeal by 242 Ltd. In the normal case, the resolution of the dispute would have been presented to the OLT for approval as part of a Settlement Hearing.

8Waring’s commenced an application on February 6, 2026, seeking to quash the by-laws under s. 273 of the Municipal Act, 2001. This was a few days before the one-year limitation period to commence an application to quash a by-law under s. 273 of the Municipal Act, 2001 was to expire.

9That application was brought in the Divisional Court, notwithstanding that s. 273 applications are to be brought in the Superior Court of Justice. The present motion seeks to correct that error by transferring the application from the Divisional Court to the Superior Court of Justice.

Issues

10The sole issue is if the Court exercise its discretion under s. 110 of the Courts of Justice Act to transfer this proceeding to the Superior Court of Justice.

Applicable Law

11Section 110(1) of the Courts of Justice Act provides:

110 (1) Where a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer.

12The language is permissive, not mandatory.

13In Alexandrov v. Csanyi, 2009 CanLII 10665 (ON SCDC) at para 9, the Superior Court described that s. 110 is a remedial provision which preserves the rights of litigants who may have lost them due to the lapse of limitation periods or other time deadlines by reason of having taken proceedings in a court without jurisdiction.

14The parties agree that the applicable test as confirmed by the Court of Appeal for Ontario in 1579959 Ontario Inc. v. Sheikh, 2025 ONCA 688 at para 13, requires that the court consider:

i. the merits of the proposed proceeding;

ii. whether the respondent will suffer undue prejudice as a result of further delay while the application is waiting to be heard; and

iii. whether the moving party acted expeditiously once it became aware that jurisdiction was in dispute.

Analysis

15Section 110 of the CJA confers a broad procedural discretion, not an entitlement to transfer. The mere fact that a proceeding is brought in the wrong court does not require its preservation. The Court must determine whether the transfer serves the interests of justice.

The Merits

16The merits inquiry is described as a “gatekeeping” function. There is no dispute that the law on the merits directs that this is not a high threshold: see 1579959 Ontario Inc. at para. 14. However, even a low threshold requires some legal basis.

17In this case, it is not disputed that the Applicant has not served its application record and has not provided the evidentiary record to support its application. As a result, the Court is left with only the Notice of Application and motion materials. 242 Ltd. argues that it is impossible to evaluate the merits without evidence. I disagree. There is no dispute as to the procedural merit of the application. The impugned by-laws were approved by the County at a time when the Applications were under appeal to the OLT. An affidavit would do nothing to change that. The record is sufficient to allow the court to assess the procedural merits of the Application.

18However, the merits test must be considered not only on the technical issue of who had the authority to approve the settlement between 242 Ltd. and the County, but also in the context and the purpose of the application that is before the court. Is there anything to be gained?

19In this regard, the issue of merit goes beyond the simple issue of who could approve the by-laws passed on February 11, 2026. There is little dispute that the authority lied with the OLT.

20As set out in Larabie Estate v. Moonbeam (Township), 2022 ONCA 904, para. 16, the authority to invalidate a by-law under s. 273 of the Municipal Act, 2002, is discretionary and the following factors are relevant to the exercise of that discretion:

i. The nature of the by-law in question;

ii. The seriousness of the illegality alleged;

iii. The consequences of the illegality alleged.

21While these are not the criteria upon which this motion to transfer is to be decided, these factors are instructive when considering if the discretion should be exercised to allow the transfer to ensure that the application has merit.

22While the County states that mootness is an issue, I disagree. At the merits stage, the application is not moot. There is a clear procedural deficiency in the by-laws approved by the County at a time when the Applications were under the jurisdiction of the OLT. At that time and until the appeal by 242 Ltd. was withdrawn in October 2025, the jurisdiction to approve the amended by-laws belonged to the OLT. As such, the application has procedural merit due to the status of the appeal with the OLT.

23However, the application for illegality lacks any purpose. It is at this level that the discretion to grant the application under s. 273 warrants an analysis of the three above factors from Larabie Estate.

24Following that analysis, the judge who ultimately hears this appeal will be faced with the following issues:

i. Nature of the By-law: The by-law in question is an approval of a development project where only the approval authority and the applicant have standing. But for the appeal to the OLT, the by-laws are clearly within the jurisdiction of the County. The by-laws have no application of a general nature and those who were interested had a right to be heard and they were heard. In this case, the Applicant Waring’s lobbied for the changes that were made in February 2025 and those changes gave Waring’s a right of consultation. The issue raised by Waring’s at this stage is with the implementation of the conditions by the County and its staff. The by-laws did not curtail or limit participation or transparency with the public approval process.

ii. Seriousness of the Illegality: On this point, the illegality is purely procedural. While I appreciate that a Settlement Hearing to approve the amended conditions before the OLT may have allowed Waring’s to be heard at the OLT if they had they received participation rights, they had the same opportunity at the County level. It is purely a question of which entity had the authority to approve the by-laws. In the normal course, the by-laws fall squarely under the County’s authority. In this case, nothing precludes the County from repeating the same public process that was done on February 11, 2025, and approve the by-laws once again. There is no evidence that anyone at the County is reconsidering its approval of the by-law. The illegality is purely procedural and would only serve to correct an oversight in the proper approval route. There is no substantive wrong to be cured.

iii. Consequences of the illegality: Here, there is no practical consequence. A declaration by a court of illegality would simply cause for the County to readopt the by-law as it now has the jurisdiction to do so. In addition, there is already a curing provision under s. 273 of the Municipal Act, 2001, whereby the illegality is cured if the one-year limitation period in s. 273 passes. But for this Application, the by-law would remain in effect and there would be no consequences of the illegality. At that point, the illegality becomes moot.

25Although I am not deciding the application under s. 273 at this stage, the above analysis has an important impact on the assessment of the merits of the proposed application. Essentially, there is no substantive merit, only technical merit based on the correct authority to approve the by-laws. There is no purpose in moving forward with the application for illegality when the result will simply be for the approval process to be undertaken a second time.

26In London (City) v. RSJ Holdings Inc., 2007 SCC 29, the Supreme Court of Canada highlighted that the discretion under s. 273 of the Municipal Act, 2001 is to be exercised judicially. Where there is a total absence of jurisdiction, a court acting judicially will quash the by-law. In the normal case, the adoption of a zoning by-law and the conditions for subdivision approval fall squarely within the jurisdiction of the County. However, in RSJ Holdings, that was also the case for the adoption of an interim control by-law. In that case, it was a failure to comply with a statutory procedural requirement of conducting the discussion on an interim control by-law in an open public session. In that case, the issue was discussed in camera.

27The circumstances in RSJ Holdings are distinguishable. It was a substantive requirement that the discussion on the interim control by-law occurs during a public meeting and not in camera. This was not purely procedural. There was an important substantive element to the decision-making process to ensure transparency and accountability. In the present case, this is not a total absence of jurisdiction. The jurisdiction is entirely present and rests with the County. The issue lies with a flawed approval process.

28Of note, there is no evidence before me that the alleged defect caused substantive harm or that any outcome would differ if proper procedure had been followed or will be followed. The issues of transparency and accountability do not come in play and the Applicant simply wants another opportunity to argue what it has already argued before the County Council. This supports the conclusion that the application is weak on its merits.

Prejudice

29The court also considers that the development project is already well under way. To allow the application to move forward may risk causing further delay to the project as the approval will now be in doubt. There is no purpose to wait for a decision on the s. 273 application and then cause 242 Ltd. and the County to return through the approval process to approve a new by-law. There is also risk that the need to recommence the approval process will this have an impact on the financing or bonding for the development. I also accept that it may impact the ability to continue with the construction pending the corrected approval process.

30At this level, there is a risk to the Respondent 242 Ltd. if the status of the project and its approvals are put into doubt over a mere technicality in the approval process.

31The alternative is to allow the one-year limitation period in s. 273(5) to take effect and allow the illegality to be cured. That is the purpose of s. 273(5) to allow parties to move forward when County Council took a legitimate decision to approve the by-law in question and the approval has already been acted upon. Once again, the procedural illegality is properly cured by the one-year limitation period. That is the purpose of s. 273(5).

32As such, I accept that there is potential for prejudice to 242 Ltd. and that this favours the refusal of the motion to transfer.

Timeliness

33Finally, it is clear that from the standpoint of the transfer motion, the Applicant proceeded expeditiously with the motion to transfer. I do not share the view of 242 Ltd. that the Applicant can be faulted for bringing the application just a few days prior to the end of the one-year limitation period. The Applicant has clearly met this criterion and should be congratulated for trying to work with the County within the February 2025 approvals.

34However, it does not appear that the Applicant was fully transparent with its objection to the by-laws. It is clear that the Applicant was working within the confines of the February 2025 by-laws. It was lobbying the County to enforce the conditions as approved by County Council. Had the Applicant been clearer as to its objection to the by-law, the County may have acted sooner to recommence the approval process.

35Regardless, the timeliness of the motion to transfer favours granting the requested relief.

Conclusion

36In the end, my assessment of the transfer motion is that it fails at the merits level given that the illegality is purely technical and serves no purpose. It also fails as the prejudice level as the approval process can be undertaken again and would only serve to create doubt and possible delay and/or prejudice to the development project. This project has moved forward in good faith with the blessing of the County which would normally approve the Applications. There are no consequences from this illegality in a matter that is personal in nature between 242 Ltd. and the County. The matter has already gone through the public consultation process and Waring’s has been heard and its concerns have been addressed. It continues to be open to Waring’s to lobby County Council if the subdivision conditions are not properly implemented. There is no purpose served by requiring the approval process to be undertaken a second time when there is no evidence that the outcome could possibly be any different.

37For these reasons, the motion to transfer is dismissed. In light of this conclusion, and consistent with the Respondents’ submissions, the Court will invite further submissions, if necessary, on whether the underlying application should be dismissed for want of jurisdiction.

Costs

38The parties are invited to resolve the issue of costs. If they are unable to do so, the Respondents may present written costs submissions within 20 days of this Endorsement and the Applicant will have 20 days to respond. Any written costs submission shall be limited to three pages plus attachments.

___________________________ Justice M. Labrosse

Released: July 7, 2026

CITATION: Waring’s Creek Improvement Association v. The Corporation of the County of Prince Edward et al., 2026 ONSC 3977

DIVISIONAL COURT FILE NO.: DC-26-00000001-0000 DATE: 2026/07/07