DATE: 20010626
DOCKET: C35079

COURT OF APPEAL FOR ONTARIO

RE:

HAMMERSON CANADA INC. (Applicant/Appellant) v. THE REGIONAL MUNICIPALITY OF PEEL (Respondent/Respondent in Appeal)

BEFORE: MORDEN, ABELLA and ROSENBERG JJ.A.

COUNSEL: Mary M. Thomson and Timothy J. Murphy, for the appellant
Robert G. Doumani and William A. Chalmers, for the respondent

HEARD: June 13, 2001

On appeal from the decision of Justice Ian V. B. Nordheimer dated September 5, 2000

E N D O R S E M E N T

[1] The issue presented by this appeal is whether a conflict exists between the provisions of The Regional Municipality of Peel By-law Number 98-91 and the provisions of the June 10, 1987 Financing Agreement between Hammerson Canada Inc. and others and the Region, the City of Mississauga, and others. If there is such a conflict, s. 14(4) of the Development Charges Act, R.S.O. 1990, c. D.9 provides that the agreement prevails “to the extent of the conflict”. In comprehensive reasons, dealing with all of the matters raised by Hammerson, Nordheimer J. found that there was no conflict and that Hammerson and its successors were required to pay the charges on industrial/commercial developments. Most of the same arguments were renewed in this court.

[2] Because we are in substantial agreement with the reasons of the applications judge, we set out our reasons in summary form. At best, the Financing Agreement was silent with respect to lot levies/development charges to be charged by the Region for non-residential development. This was in accordance with the policy, as implemented in the relevant by-laws, that the Region only charged lot levies on residential development. Some parts of the Agreement, such as section 4, might be read as putting Hammerson on notice that the Region could in the future seek to impose additional lot levies on other than residential property. We do not rely upon these provisions and we have considerable doubt that the applications judge was right in his interpretation of section 5 of the Agreement. However, his view of the effect of those provisions was not central to his conclusion that there was no conflict.

[3] The determining feature in the circumstances of this case is that silence in the Agreement about development charges on commercial/industrial development does not give rise to a conflict within the meaning of s. 14(4) of the Act. We agree with the applications judge that the factual matrix does not support the appellant’s position that silence can constitute a conflict. The factual matrix or context includes the facts that the Region was not at the bargaining table in 1987 and that commercial/industrial levies by the Region were not in issue, nor on the table, at that time.

[4] As this court observed in Ontario Cancer Treatment & Research Foundation v. Ottawa (City) (1998), 1998 CanLII 1255 (ON CA), 38 O.R. (3d) 224 at 241, the purposes of the Act were to bring uniformity and order into development/growth related municipal costs and to implement the underlying economic philosophy that development should pay for the infrastructure costs that it generates. The Act thus gave the municipalities the power to impose development charges by by-law where, previously, such levies could only be imposed by agreement. The provisions of existing agreements prevail over any charges imposed under the new legislation but only to the extent of the conflict between the provisions of the by-law and the provisions of the agreement. The appellant can point to no provision of the Financing Agreement that presents any such conflict. The Agreement and the By-law can stand together. The former does not address development charges on non-residential development. The latter does. There is no conflict.

[5] The appellant placed particular reliance upon Slice Construction Ltd. v. City of Ottawa (1983), 16 O.M.B.R. 506 (H.C.J.) affirmed (1985), 18 O.M.B.R. 350 (C.A.). In our view, the applications judge properly distinguished that case. The issue of industrial/commercial development charges was simply not the subject of bargaining in 1987. This is therefore not a case where a bargain is being unilaterally varied.

[6] Accordingly, the appeal is dismissed with costs.

(signed) "J. W. Morden J.A."

(signed) "R. S. Abella J.A."

(signed) "M. Rosenberg J.A."