Court File No.: 328/01
Date: 20040218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SUTHERLAND, ARCHIE CAMPBELL AND MATLOW JJ.
B E T W E E N : )
EASTPINE KENNEDY-STEELES ) Christopher J. Williams and
LIMITED and RICENBERG ) Tom Halinski for the Appellants
DEVELOPMENTS LIMITED )
Appellants )
) John Mascarin
- and - ) for the Town of Markham
THE CORPORATION OF THE TOWN )
OF MARKHAM, CEDARLAND )
PROPERTIES LIMITED, INDIO ) Colin P. Stevenson for the
CONSTRUCTION INC. and NEAMSBY ) Respondents
INVESTMENTS INC. )
) Heard: March 7, 2003
Respondents ) Further Submissions: March 14
) and 27, 2003
ARCHIE CAMPBELL J.:
The Appeal
[1] Eastpine Kennedy-Steeles limited, the developer of a 110 lot residential subdivision in Markham, appeals under s. 96 (1) of the Ontario Municipal Board Act[^1] from the order of the Board requiring Eastpine to pay its share of municipal infrastructure such as roads and storm sewers previously installed by Cedarland Properties Limited when it developed neighbouring lands.
Background
[2] Eastpine benefited from the “front end loading” of the services installed by Cedarland including road construction, storm sewers and solid waste management facilities.
[3] Cedarland, a long time developer of lands in Markham, owned and developed most of the lands surrounding the Eastpine lands. Markham, as part of the approval process, required Cedarland in the mid 1980’s to “front-end” the cost of municipal infrastructure work which benefited not only the Cedarland development but also neighbouring lands to be developed later by others. This work included street extensions, intersections, and sewage systems:
Clayton Drive construction
Denison Street construction
CNR easement
Oversizing of storm sewers and solid waste management facilities
[4] In those days before the commencement of the statutory development charges legislation, the recovery regime was a “best efforts” system. The system contemplated that the first developer, in this case Cedarland, would front end municipal infrastructure costs which in turn would be repaid by later developers on a proportionate basis. The recovery mechanism was a covenant by Markham to use its best efforts to collect from later developers.
[5] The Development Charges Act 1989, after a two-year phase in, came into full effect on November 23, 1991. For the reasons set out below, that legislation governs this case.
[6] On February 8, 1998 Markham council approved Eastpine’s draft subdivision plan for a 6.2 hectare 110 lot residential development near Kennedy Road and Steeles. Condition 1.2 of the draft subdivision plan contains the standard requirement that the owner was to enter a subdivision agreement to satisfy all Town conditions prior to final approval:
The owner is to enter into a subdivision agreement with the Town agreeing to satisfy all conditions of the Town and agencies, federal and otherwise, prior to final approval.
[7] On March 1, 1998 the Development Charges Act 1989 was repealed and replaced by the Developmental Charges Act 1997. For the reasons given below, that change did not affect this case which continued to be governed by the 1989 Act.
[8] The general condition 1.2 was amended on December 15, 1998 to provide expressly for recoveries from Eastpine to Cedarland in relation to the services already front-ended by Cedarland including road construction and oversizing of storm sewers and waste management facilities:
1.2 The owner shall enter into a subdivision agreement with the Town agreeing to satisfy all conditions of the Town and agencies, financial and otherwise, prior to final approval. In addition to other matters, the subdivision agreement shall contain the provision for payment by the owner of the following recoveries which will be finalized and paid at the subdivision agreement stage:
Recoveries For: Cost Estimate:
Clayton Drive Construction $52,364.25
Denison Street Construction $95,790.14
CNR Easement $10,235.38
Kennedy Road Construction $75,583.40
Oversizing of Storm Sewers and
SWM Facility $260,000.00 (plus interest)
TOTAL $493,973.17 (plus interest)
Or such lesser amount that may be agreed to between the parties, Eastpine Holdings Limited/Ricenberg Developments Limited and Cedarland Properties Limited.
[9] Eastpine entered into a subdivision agreement with the Town on January 8, 1999 and the Plan was registered on January 21, 1999. The subdivision agreement provided a few more particulars of the $493,973 recovery and the agreement specified interest in the amount of $256,026 for a total recovery of $750,000 Eastpine by agreement with the Town posted a letter of credit in the amount of $750,000 in order to satisfy the condition pending appeal. The letter of credit is not to be drawn down pending final disposition of Eastpine’s appeal which was taken to the Board against amended condition 1.2 on January 21, 1999 pursuant to s. 50 (48) of the Planning Act[^2] on various grounds including jurisdiction and legality.
OMB Appeal: Background
[10] The OMB after a pre-hearing conference divided the appeal into two phases, first to deal with three jurisdictional issues and secondly, depending on the jurisdictional issues, to deal with a factual determination as to the quantum of recovery if any.
[11] The present appellant was not satisfied with the Board’s adverse ruling in the first phase and obtained leave to appeal to the Divisional Court. The court[^3] quashed the appeal on the grounds that in order to avoid fragmentation of the appeal process it was preferable to let the appeal run its full course before the tribunal and then consider in one final appeal all legal matters arising from the proceedings after their conclusion.
[12] The matter proceeded to conclusion before another board member, B. M. McLoughlin. It is from his final decision that this appeal is taken.
The OMB Decision
[13] Eastpine argued that it was not liable for any share of the municipal infrastructure costs that had earlier been front-end funded by Cedarland. The Board after a detailed and exhaustive review of the evidence found that:
- That the recoveries were costs incurred years earlier by Cedarland
- Eastpine had benefited from Cedarland’s expenditures
- It was fair and equitable for Eastpine to pay these recoveries in the amount of $568,391, an amount considerably less than that claimed.
[14] Because of the transition between three and overlapping developmental charge regimes that came into force at different times in relation to these property developments, the Board struck down condition 1.2 because it contravened s. 45 of the Development Charges Act 1989[^4] and substituted an identical condition pursuant to s. 51 (25) of the Planning Act.
[15] The Board had to apply three different regimes:
Front end developer funding with best efforts by Town
Development Charges Act 1989 repealed March 1,1998
Prohibits imposition of development charges under new agreements pursuant to Planning Act s. 50 & 52
- Development Charges Act 1997[^5]
[16] The Board after considering in some detail the statutory regimes and the transition provisions concluded:
The transition provisions contemplate that, in this case, that the front-ending agreement between Cedarland and the Town for the collection of recoveries will continue to operate in a parallel stream with the 1989 Act.
[17] The original condition 1.2, the financial generic condition, was approved by the Town on February 8, 1998 at a time when the 1989 act still applied. The Board referred to this in the course of concluding that the 1989 Act applied:
On February 8, 1998, Town Council acting in its capacity of approval authority, granted Draft Plan Approval of Eastpine’s Plan of Subdivision, and at this date Condition 1.2 which has been referred to as the financial “generic condition” was part of the Conditions of Draft Plan Approval. The Development Charges Act, 1989 was in force. The sections relevant to the consideration of the matters before the Board were not repealed until March 1, 1998. Therefore it is the finding of the Board that the 1989 Act applies.
[18] The Board took the view that underlying each regime was the principle that each developer should pay its own infrastructure costs plus its fair proportionate share of infrastructure expenditure by others from which it derived a benefit:
The intent of the front-end funding regime prior to the enactment of the 1989 Act and subsequently the 1997 Act was that each development should attract infrastructure costs that it directly benefits from and those of a broader scope. In the Town, prior to development charge legislation, the front-end and recovery regime which intended that municipal infrastructure costs permitting new development would be front-ended by the first developments which would absorb their proportionate share of these costs from which they benefited. Subsequent developments would take up the balance on a proportionate basis. This regime may not have been perfect but it was satisfactory to the Town and the developers in the mid 1980 period. Much of the costs were recovered from developments in that time period. It is not for the Board, in this instance, to change or vary the development agreements of the past that have been fulfilled and completed. The principle was then that each development should pay for the infrastructure works from which it derives a benefit as do other parts of the benefiting area.
In this case, not so much turns on whether the Eastpine lands are within the boundaries of the Riseborough Central Area but rather did it benefit and is it fair and equitable that it pay as recoveries, part of the front-end infrastructure costs directed by the Town to be undertaken before it would approve the development of the Super Centre site by Cedarland.
The position of the Town and Cedarland as to the appropriate recoveries is contained in the modified condition and in the recoveries provision in the 1999 Subdivision Agreement between the Town and Eastpine.
The recoveries are repeated here together with the total cost of each work as agreed to by Cedarland and the Town. The total costs are taken from the schedule prepared by Cedarland (Exhibit 10, Attachment 3) which contains the composition of each work.
[19] The Board then proceeded to a detailed factual analysis of each of the infrastructure expenditures in question.
[20] In summary, the Board held:
- that the Development Charges Act 1989 applied
- that Condition 1.2 was prohibited by s. 45 (1) of the 1989 Act
- that the general power in 51 (25) of the Planning Act authorized the OMB to impose directly (not way of subdivision agreement) a condition of draft plan approval requiring payment by Eastpine of fair and equitable recoveries
- that under the “fair and equitable” test some expenses should be rejected and some allowed.
- that the sum of $568,391.08 represented Eastpine’s proportionate share of the costs of Cedarland’s works that were to the direct benefit of Eastpine
[21] The Board allowed Eastpine’s appeal. It declined to approve the bylaw appealed from, which required Eastpine to pay $750,000. Pursuant to s. 51 (25) of the Planning Act the Board added a condition of draft plan approval to the draft plan of subdivision. The condition of approval required Eastpine to pay to Markham recoveries in the amount of $568,391 as opposed to the $750.000 required by the bylaw appealed from.
[22] The operative part of the Board’s order reads as follows:
…the appeal of Eastpine Kennedy Steeles Limited and Ricenberg Developments Limited is allowed and Condition 1.2 as modified is not approved. A Condition of Draft Plan Approval is added to Draft Plan of Subdivision 19TM-97005 pursuant to section 51 (25) of the Planning Act which requires Eastpine Kennedy-Steeles Limited and Ricenberg Developments Limited to pay the Town of Markham recoveries in the amount of $568,391.08…
Leave to Appeal
[23] Then J. granted leave to appeal on the following grounds:
Did the Board have the jurisdiction to impose a completely new development charge condition on Eastpine under subsections 51 (25) and 51 (26) of the Planning Act, R.S.O. 1990, c. P. 13, after deciding that the changed condition 1.2 was ultra vires pursuant to section 45 of the Development Charges Act, R.S.O. 1990 c. D.9?
Did the Board err in law in finding that the agreement between Cedarland and the Town, which provided for the collection by the Town of “recovery “ payments from subsequent developers, lawfully coexisted with the Development Charges Act, in spite of s. 45 of the Development Charges Act?
Which Act Applies?
[24] Both parties argued before the Board that the applicable statute was the Development Charges Act 1989 and not the 1997 Act. Before the Board they argued in the alternative that the 1997 Act applied. Both parties took the same primary positions on this appeal, that the 1989 Act applies, but only Cedarland argued in the alternative that the 1997 Act applies. The practical difference is that if the 1997 Act applies the matter would have to be remitted to the Board.
[25] For the reasons that follow, the 1989 Act applies.
[26] The appellants submitted their complete application for subdivision approval in 1996. Draft approval of their plan of subdivision, including original condition 1.2, was granted on February 9, 1998 when the 1989 Act was still in force.
[27] The new Act came into force on March 1, 1998.
[28] When the new act came into force, the rights and obligations of Eastpine and the Town had already crystallized, at the latest on February 9, 1998 when the approval and condition 1.2 came into force. The later amendment to condition 1.2 did not change the date of crystallization. As the Board correctly pointed out:
The modified condition became part of the Conditions of Draft Plan Approval
and therefore took effect as part of the February 9, 1998 approval when the rights of the Town and Eastpine crystallized.
[29] The general rule is that crystallized rights are not affected by later legislation unless the repealing legislation clearly states that it shall be applied retroactively.[^6]
[30] Because nothing in the new Act required retroactive application, the general rule applies and the governing statute is the Development Charges Act 1989 in force when the rights crystallized on February 9, 1998.
The Underlying Policy
[31] As noted by the Board, above, a simple principle underlies all three regimes, the pre-statutory “best efforts” regime[^7] and the 1989 and 1997 Development Charges Acts. The principle of proportionate sharing flows from the reality that development may take place over a period of time so that the roads and sewers and other infrastructure installed by one developer may directly benefit later developers who become obliged to absorb their proportionate share of the costs from which they benefited.
The Successive Regimes
[32] The pre-1989 regime depended on the municipality’s agreement with the earlier developer to use the municipality’s best efforts to recover from later developers their fair share of infrastructure installed by the earlier developer.
[33] Under the 1989 Act the charges were not to be recovered by way of agreement. Section 45 (1) provided:
A municipality shall not enter into an agreement under section 51 or 53 of the Planning Act that imposes a charge related to a development....
[34] Although the 1989 Act prohibited the imposition of a charge by agreement, it did not prohibit a charge being imposed directly by way of condition, as was done by the OMB in this case.
[35] The 1997 act prohibits the imposition of a charge by way of agreement or condition.
[36] The OMB recognised that under the 1989 Act the charge could not be imposed by way of agreement but only by direct condition. The Board imposed the condition not by way of agreement by but way of direct condition under the general powers of s. 51 (25) of the Planning Act.
Planning Act Provisions
[37] The Planning Act[^8] provides:
51 (25) The approval authority may impose such conditions to the approval of a plan of subdivision as in the opinion of the approved authority are reasonable, having regard to the nature of the development proposed for the subdivision, including a requirement,
(a) that land be dedicated or other requirements met for park or other public recreational purposes under section 51.1;
(b) that such highways be dedicated as the approval authority considers necessary;
(c) when the proposed subdivision abuts on an existing highway that sufficient land, other than land occupied by buildings or structures, be dedicated to provide for the widening of the highway to such width as the approval authority considers necessary; and
(d) that the owner of the land proposed to be subdivided enter into one or more agreements with a municipality, or where the land is in territory without municipal organization, with any minister of the Crown in right of Ontario or planning board dealing with such matters as the approval authority may consider necessary, including the provision of municipal or other services. …
51 (26) A municipality or approval authority, or both, may enter into agreements imposed as a condition to the approval of a plan of subdivision and the agreements may be registered against the land to which it applies and the municipality or the approval authority, as the case may be, is entitled to enforce the provisions of it against the owner and, subject to the Registry Act and the Land Titles Act, any and all subsequent owners of the land.
51 (48) Any person or public body may appeal any of the changed conditions imposed by the approval authority to the Municipal Board by filing with the approval authority a notice of appeal that must set out the reasons for the appeal, accompanied by the fee prescribed under the Ontario Municipal Board Act.
51 (56) On an appeal under subsection (34) or (39), the Municipal Board may make any decision that the approval authority could have made on the application and on an appeal under subsection (43) or (48) shall determine the question as to the conditions appealed to it.
Standard of Review
[38] The appeal to this court under s. 96 (1) is under the OMBA. The standard of review is correctness or reasonableness, depending on the nature of the particular question of law. See London v. Ayerswood, 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.) at para 27.
[39] The appeal engages development planning issues at the heart of the Municipal Board’s specialized expertise. The crafting of an appropriate subdivision condition to ensure a fair and equitable allocation of certain development costs involves questions of fact, policy, and law central to the OMB’s specialized jurisdiction. These are questions in which the court has limited if any expertise. These questions fall within the OMB’s express mandate to deal with all issues related to municipal planning and the financing of land development, matters entrusted by the legislature not to the courts but to the Municipal Board.
[40] The decision involves the tribunal’s home statute, the Planning Act, and the closely related Development Charges Act. It is not as if the decision dealt with non-planning issues peripheral to its expertise such as expropriation or educational funding.
[41] The standard of review is not determined by the fact that the word “jurisdiction” has been inserted in the question on which leave to appeal was granted. It is true that some of the issues may be characterized as jurisdictional, but that is true in many administrative law cases. As Chief Justice Dickson pointed out:
The question of what is or is not jurisdictional is often very difficult to determine. The courts, in my view, should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so.[^9]
[42] Having regard to
the expertise of the tribunal in the application of planning and development policy as set out in its home statute, the Planning Act and the closely related development charges legislation,
the tribunal’s experience in the interpretation and application of the three successive municipal development infrastructure financing regimes and
the nature of the tribunal’s decision that it was equitable for Eastpine as a condition of its new development to pay its fair share of the front end development charges paid by Cedarland that benefited Eastpine
the standard of review is reasonableness.
[43] Having regard to the court’s conclusions, the same result would obtain even if the standard of review were correctness.
The Arguments
[44] The appellant Eastpine argues that
s. 45 of the Development Charges Act 1989 prohibits the imposition of a development charge and
to impose this condition under the general powers of 51(25) of the Planning Act is beyond the scope of the general power and achieves indirectly that which is directly prohibited by s. 45 of the Development Charges Act.
[45] The respondent Cedarland argues
s. 45 of the Development Charges Act 1989 prohibits the imposition of a development charge by way of agreement but not by way of direct charge
Sections 51(25), 51(48) and (56) of the Planning Act provide sufficient planning authority for the imposition of conditions necessary to give effect to the equitable principle that a landowner who benefits from prepaid municipal services should bear its fair share of the costs.
Express Prohibition?
[46] Section 45 (1) of the Development Charges Act 1989, as noted above, provides:
A municipality shall not enter into an agreement under section 51 or 53 of the Planning Act that imposes a charge related to a development....
[47] Although Eastpine says this prevents the imposition of a charge, it does not. It prevents the imposition of a charge by way of agreement, but not by way of direct condition.
[48] The Development Charges Act 1989 does not expressly prohibit the condition imposed by the board. The Act does not say “After the coming into force of this Act no condition shall be imposed under s. 51 (25) of the Planning Act for the purpose of effecting an equitable distribution of front-end infrastructure expenditures made by one developer to the benefit of a later developer…..”
[49] To give effect to Eastpine’s argument would give Eastpine an unfair windfall at the unfair expense of Cedarland.
[50] It would require express language to prohibit the Board from exercising its basic planning jurisdiction to give effect to the underlying equitable policy of all three regimes by ensuring a measure of fairness of the kind provided by the order under appeal.
[51] In the absence of explicit language, the prohibition in s. 45(1) cannot extend beyond its express terms which are limited to charges imposed by way of agreement. It therefore does not prohibit the order in question in this case.
[52] This conclusion is fortified by an analysis of cases like Strano v. Guelph, discussed below.
No Inconsistency
[53] There is no inconsistency or conflict between the Development Charges Act s. 45 and the Planning Act s. 51(25). The prohibition against imposing a charge by agreement does not speak to the imposition of a charge by direct condition. In the absence of any conflict between the provisions, it cannot be said that one provision overrides the other.
Jurisdiction to Impose Condition
[54] Did the Board have power to impose the condition that Eastpine pay its fair share of the infrastructure expenditures front-ended by Cedarland?
[55] The Board accepted Cedarland’s argument on jurisdiction:
Cedarland advances the proposition that the Board can impose a development charge condition, pursuant to subsection 51 (25) of the Planning Act, and should substitute one for the full amount of the recoveries. Also subsections 51(25) and 51(26) are broad enough to support the imposition of such a condition. Strano v. Guelph (City), (1996), 34 O.M.B.R. 334 (OMB).
The Board finds that it has the authority under the Planning Act to impose a Condition of Draft Plan Approval pertaining to recoveries which is fair and equitable and it does in the amount of $568,391.08 ($260,000.00 + $256,026.83 + $52,364.25)
[56] Section 51 (25) authorizes Markham to impose reasonable conditions having regard to the nature of the proposed development. Section 51(48) provides an appeal to OMB in respect to any of the conditions, and under s. 51 (56) the Board the OMB “shall determine the question as to the conditions appealed to it.” That is exactly what the Board did here.
[57] Each side cited many authorities on the scope of the general power in Planning Act s. 51(25).
[58] Many of the cases relied on by the appellant have nothing to do with regular municipal services and may be easily distinguished on the basis that this planning case has nothing to do with unrelated matters such as municipal attempts to get school sites at less than fair market value. This case has do with municipal services which are the very lifeblood of the Planning Act and the subject matter of so many subdivision applications. The condition in this case relates to municipal infrastructure services that benefit the land to be developed. Nothing could be closer to the heart of the planning and development of this land than the question of who pays for these infrastructure services.
[59] The fact that the Board cannot require a municipality to enter an agreement does not prevent the Board from imposing a condition directly. As the Court of Appeal pointed out in obiter in Re 314164 Ontario Ltd. and City of Sudbury[^10]:
…we are not suggesting that the Board has the power to alter a condition so as to require a municipality to enter into a particular agreement against its will, but it can, we think, settle the disputed issue by the imposition of a condition resolving the issue directly….
[60] This is exactly what the Board did here. For further examples see Re George Wimpley Canada Ltd. and Regional Municipality of Durham (1983), 15 O.M.B.R. 75 at p. 79 and Mod-Aire Homes v. Bradford (Town) (No. 2) (1989), 23 O.M.B.R. 263 at p. 271.
[61] The rationale for this jurisdiction is set out In Strano v. City of Guelph by Member M. Melling (1996), 34 O.M.B.R. 334 at p. 337 ff:
I have decided that the Appellant’s primary argument is right: because of s. 45 (1) of the DCA, the City cannot enter into an agreement him which requires him to pay for a share of the front-ended services. However, I have also decided that the Appellant should not be permitted to succeed in avoiding payment. I will therefore replace the impugned condition with a new one which, in my view is authorized by the PA and does not offend the DCA.
….I concur with Vice-Chair Eger[^11] that the imposition of such a condition neither causes nor induces any violation of s. 45 (1) of the DCA. Unlike the condition imposed in this case by the Committee, there would be no requirement that the municipality enter into an agreement prohibited by s. 45 (1). Indeed, such a condition wouldn’t require anyone to enter into an agreement. It would simply say to the benefiting owner: “pay your share of front-ended servicing costs, or you don’t get a “consent.” That, in effect, is what Vice-Chair Eger said to the benefiting owner in Vaughan.[^12]
…no one should get a “free ride” at the expense of others who have provided services in good faith and with a reasonable expectation of reimbursement…The Appellant’s proposed development will benefit from the services, and therefore from the arrangement by which they were installed. He should pay for that benefit. [^13]
[62] The Board in this case, as did the Board in Strano, interpreted its powers under s. 51(25) purposively according the object and purpose of the statute by vindicating the reasonable expectation that the cost of pre-paid front ended services would be distributed equitably among those who benefit from the services.
[63] To give s. 51(25) the narrow scope sought by the appellant would defeat the principles of good planning and the purpose of the statutory regime by giving Eastpine an unfair windfall at the expense of Cedarland who paid for the infrastructure services up front.
Conclusion
[64] This is a convenient place to repeat the questions on which leave to appeal was granted:
Did the Board have the jurisdiction to impose a completely new development charge condition on Eastpine under subsections 51(25) and 51 (26) of the Planning Act, R.S.O. 1990, c. P. 13, after deciding that the changed condition 1.2 was ultra vires pursuant to section 45 of the Development Charges Act, R.S.O. 1990 c. D.9?
Did the Board err in law in finding that the agreement between Cedarland and the Town, which provided for the collection by the Town of “recovery” payments from subsequent developers, lawfully coexisted with the Development Charges Act, in spite of s. 45 of the Development Charges Act?
[65] For the reasons given above, the answer to question #1 is yes.
[66] For the same reasons, although question #2 may contain assumptions that do not reflect the reasoning of the Board, there was no error in respect of the matters contained in question #2 and the answer to question #2 is no.
[67] The appeal is therefore dismissed.
[68] Counsel may exchange and submit brief written submissions as to costs and quantum to the Registrar within two weeks.
RELEASED:
Court File No. 328/01
Date: 20040218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SUTHERLAND, ARCHIE CAMPBELL AND MATLOW JJ.
B E T W E E N :
EASTPINE KENNEDY-STEELES LIMITED and RICENBERG DEVELOPMENTS LIMITED
Appellants
- and -
THE CORPORATION OF THE TOWN OF
MARKHAM, CEDARLAND PROPERTIES
LIMITED, INDIO CONSTRUCTION INC. and
NEAMSBY INVESTMENTS INC.
Respondents
J U D G M E N T
ARCHIE CAMPBELL J.
Released: February 18, 2004
[^1]: R.S.O. 1990, c. O28
[^2]: R.S.O. 1990 c. P.13
[^3]: O’Driscoll, Southey & Jennings JJ., March 14, 2000, Court File # 487/99
[^4]: R.S.O. 1990, c. D9
[^5]: S.O. 1997, c. 31
[^6]: Township of Nepean v. Leikin, 1971 642 (ON CA), [1971] 1 O.R. 567 per Evans J.A. at p. 572:
It would appear to me right on principle that a person who had acquired certain rights and incurred certain obligations in accordance with the law as it stood at the time such rights and obligations arose should not be adversely affected by giving retroactive effect to legislation which seriously impairs those rights and obligations unless the repealing legislation clearly states that it shall be applied in a retroactive manner.
[^7]: Sometimes called the “front-ending” regime
[^8]: R.S.O. 1990, c. P. 13, s. 1.1
[^9]: C.U.P.E. v. New Brunswick Liquor, 1979 23 (SCC), [1979] 2 S.C.R. 227 at p. 233.
[^10]: (1983) 10 O.M.B.R. 293 at p. 296
[^11]: Re Vaughan (City) Official Plan Amendment 387 and Zoning By-law 186-95 (1996), 33 O.M.B.R. 263
[^12]: At p. 343
[^13]: At p. 346