CITATION: Miller Paving Limited v. Kawartha Lakes (City), 2010 ONCA 801
DATE: 20101129
DOCKET: C52180
COURT OF APPEAL FOR ONTARIO
MacPherson, Gillese and Juriansz JJ.A.
BETWEEN
Miller Paving Limited
Applicants/Appellants
and
The Corporation of the City of Kawartha Lakes and R.W. Tomlinson
Respondents/Respondents in Appeal
M. John Ewart and P. Kourtney O’Dwyer, for the appellants Miller Paving Limited
Keith MacLaren, for the respondent R. W. Tomlinson
Michael Miller, for the respondent Corporation of the City of Kawartha Lakes
Heard and released orally: November 24, 2010
On appeal from the order of Justice Gregory M. Mulligan of the Superior Court of Justice dated April 30, 2010.
ENDORSEMENT
[1] The appellant Miller Paving Limited appeals the decision of Mulligan J. of the Superior Court of Justice dated April 30, 2010 declining to exercise his discretion to quash one of the respondent corporation’s by-laws because the municipality failed to provide proper notification to the appellant that the by-law had been passed.
[2] We see no basis for interfering with the application judge’s exercise of discretion in this matter. Section 273(1) of the Municipal Act, S.O. 2001, c. 25, provides:
273(1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality.
[3] The use of the word “may” creates a discretion, not a requirement, that a superior court judge may quash a by-law for illegality.
[4] The application judge carefully reviewed the circumstances giving rise to the municipality’s failure to comply with a statutory obligation to provide notice to the appellant that a by-law affecting the appellant has been passed. He concluded that there was no bad faith on the part of the municipality giving rise to this omission. Moreover, he also found that the appellant was not prejudiced by the lack of a formal notice from the municipality. In light of these two factors, the application judge declined to quash the by-law. We can see no error in his reasoning or disposition.
[5] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $10,000 each inclusive of disbursements and applicable taxes.
“J. C. MacPherson J.A.”
“E. E. Gillese J.A.”
“R. G. Juriansz J.A.”