COBOURG COURT FILE NO.: 49/13

DATE: 20151211

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ian Angus and Daphne Angus, Plaintiffs

The Corporation of the Municipality of Port Hope, Defendant

BEFORE: S. Woodley J.

COUNSEL:
M. John Ewart, for the Plaintiffs

Kristin Muszynski, for the Defendant

HEARD: November 16, 2015

ENDORSEMENT

Overview

[1] The Plaintiffs bring a motion for partial summary judgment. The motion seeks to determine whether a municipal by-law regulating the permit fee imposed for the importation of fill material, enacted for the protection of the environmental and the safety of the population is ultra vires as being beyond the powers of the Municipality to impose an indirect tax?

Issues

[2] The issues to be determined on this motion are as follows:

a. Is the matter an appropriate case for determination by motion for partial summary judgment? If the answer is yes, is the court entitled to make findings adverse to those sought by the Plaintiffs with the result that partial summary judgment will be granted in favour of the Defendant?

b. Does the Municipality of Port Hope, By-law No. 47/2012, Municipal Site Alteration and Fill By-law (29 May 2012), fail to comply with the provisions of s. 142 of the Municipal Act, 2001, S.O. 2001, c. 25, and is thus ultra vires?

Determination of Issues

[3] I find that the matter may be an appropriate case for determination by motion for partial summary judgment. However, I find that the evidence filed by the Defendant is insufficient to allow a determination of the issue. As such I am unable to make any finding as to whether By-law 47/2012 complies with s. 142 of the Municipal Act, 2001, and/or is ultra vires as being beyond the powers of the Municipality to impose an indirect tax. The Defendant shall be required to file further material so that the matter may be properly determined.

Analysis

[4] The evidence submitted by the Defendant on the motion was in the form of an Affidavit that attached one report and did not provide details of any particular study,cost benefit analysis, or calculations.

[5] The Defendant relied on the decision of Justice Lederer in Greater Toronto Apartment Association v. Toronto (City), 2012 ONSC 4448, [2012] O.J. No. 3866, at para. 41, for the proposition that “in determining whether a nexus exists, it is not for the court to look behind the methodology used and question the assumptions made in respect of individual values adopted.” However, Justice Lederer considered at length the evidence that was submitted by the City of Toronto and reviewed the chart which, in part, demonstrated the basis upon which the actual fee was calculated.

[6] Justice Lederer was not suggesting that in determining the nexus the court should rely upon statements of intent and reports containing no values or monetary comparisons. His Honour’s comments applied to a situation where actual costs were determined and categorized, where assumptions were made with respect to future costs, and where the permit fee was determined on the best estimates available to the City.

[7] This is not the situation before me. The Defendant has submitted no independent corroborative evidence to support its submissions that the by-law permit fee was prescribed “in a way that will both allow the Municipality to recoup administration costs in overseeing operations involving fill while also effectively addressing numerous health and safety issues relating to large levels of fill being imported into the municipality which directly affects the residents of Port Hope.”

[8] I am not placed in a situation where I could seek to “look behind the methodology used and question the assumptions made in respect of individual values adopted” since no methodology or values of any kind were presented in support of the fee.

[9] In these circumstances I find that the evidence submitted by the Defendant is insufficient and I am unable to determine whether there exists a nexus between the quantum charged and the cost of the service provided or whether the fees charged can be determined to form part of a larger regulatory scheme.

[10] I find that the evidence submitted by the Defendant is insufficient to (1) allow me to make the necessary findings of fact and (2) allow me to apply the law to the facts.

[11] Although the parties were required to put their best evidence forward on this motion and I am entitled to assume that the record contains all evidence that would be available at trial, I cannot in good conscience determine this very important issue on the evidence filed before me.

[12] Further, the fact that the Defendant has provided insufficient evidence does not mean that there is a genuine issue requiring a trial as this may result in procedural unfairness to the Plaintiffs. As such I find that that further evidence is needed before I can make a determination as to whether there is a genuine issue regarding a trial.

Interim Disposition of Motion

[13] Invoking the new fact-finding powers under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as contemplated by the Supreme Court of Canada in Hyrniak v. Mauldin, 2014 SCC 7, I hereby order the Defendant to file further supplemental materials as are required to fairly and justly adjudicate the dispute in a timely, affordable and proportionate manner in light of the litigation as a whole.

[14] The Defendant shall within 60 days of the date herein file further and specific materials to address the issue of whether there is a nexus between the fees charged by By-law 47/2012 and the actual or estimated cost of administering the scheme and otherwise whether the fees are part of a larger regulatory scheme.

[15] The Plaintiffs shall be entitled 45 days from the date of service of the Defendant’s materials to file a reply.

[16] Costs relating to the hearing of the motion to date are reserved to the final determination of the motion.

S. Woodley J.

Date: December 11, 2015