Court File and Parties
NEWMARKET COURT FILE NO.: CV-14-117464-00 DATE: 20160708 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
2149629 Ontario Inc Plaintiff – and – The Regional Municipality of York Defendant
Counsel: Jack B. Berkow and Adam Wygodny, for the Responding Party (Plaintiff) Douglas O. Smith, Aimee Collier for the Moving Party (Defendant)
HEARD: February 5, 2016 and April 15, 2016
Justice S.J. Woodley
REASONS FOR JUDGMENT
OVERVIEW
[1] The Defendant, the Regional Municipality of York (“Region”) brings this motion for summary judgment seeking dismissal of the claim of the Plaintiff, 2149629 Ontario Inc. (“214”) on the grounds that there is no genuine issue requiring a trial.
[2] The claim commenced by 214 as against the Region relates to a development agreement (“the agreement”) under which 214 would develop lands in the Township of King and, upon registration of the plan of subdivision, would pay development charges at the 2007 by-law rate instead of the higher 2012 by-law rate. However, if 214 failed to register the plan of subdivision by December 17, 2012, the 2012 by-law rate would apply, resulting in increased charges of $560,051.
[3] For reasons detailed below, 214 did not register the plan of subdivision by December 17, 2012 and was required to pay development charges at the higher 2012 by-law rate.
[4] The failure of 214 to register the plan of subdivision by December 17, 2012 was due in part to 214’s failure to satisfy a dewatering condition imposed by the Region. It is the manner in which this dewatering condition was managed between the Region, the Township of King, and 214 that forms the crux of the dispute between the parties.
ISSUES
[5] The following issues were raised by the Region and 214 on this motion for summary judgment:
i. Does this court have jurisdiction to hear this matter? If so, should the court exercise jurisdiction?
ii. Is the matter an appropriate case for determination by a motion for summary judgment on the basis that there is no genuine issue requiring a trial?
a. Was the Region negligent?
b. Is the Region liable in negligence on the basis of a principal/agency relationship between the Region and the Township of King?
c. Did the Region breach its contractual duty to 214 to perform contract obligations in good faith?
iii. Ought the court grant relief from forfeiture to 214?
DETERMINATION OF ISSUES
[6] For the reasons set out herein, the issues are determined as follows:
i. The Region has attorned to the jurisdiction of this court regardless of whether the Ontario Municipal Board has exclusive or parallel jurisdiction.
ii. This matter is an appropriate case for determination by a motion for summary judgment on the basis that there is no genuine issue requiring a trial.
a. The Region was not negligent.
b. The Region is not liable in negligence on the basis of any alleged principal/agency relationship between the Region and the Township of King.
c. The Region did not breach its duty to perform contractual obligations in good faith.
iii. This court will not grant relief from forfeiture as no forfeiture has occurred.
FACTS
Overview of Events and Relationships
[7] The development agreement between 214 and the Region, which permitted 214 to pay development charges at the 2007 by-law rate subject to certain conditions, was entered into on June 12, 2012. However, discussions regarding the proposed development had been ongoing for several years prior to 2012.
[8] Although not cited as a party to the claim, the Township of King was an active and necessary participant in the development process as the land subject to the development agreement is situated within the Township of King, in the Regional Municipality of York.
[9] Each of the entities, being the Township of King and the Region, are responsible for control and approval of differing elements of the land development process.
[10] In the present case, broadly speaking, the Region advised the Township of King of certain necessary conditions that the Region required satisfied before the plan of subdivision could be registered. However, it is the Township of King that provides final approval for registration of the plan of subdivision.
Timeline and Summary of Events
[11] In May of 2008, 214 submitted its initial draft plan of subdivision to the Township of King.
[12] In May of 2010, the Region provided the Township of King with an initial set of conditions pertaining to 214’s draft plan.
[13] On June 28, 2010, the Township of King accepted the Region’s conditions.
[14] On June 1, 2011, in response to the initial set of conditions, 214 submitted a revised draft plan of subdivision to the Township of King.
[15] The Township of King forwarded the revised draft plan of subdivision to the Region for comment.
[16] On August 15, 2011, the Region wrote to 214 and requested payment in respect of the Region’s commenting fee.
[17] On September 19, 2011, 214 paid the Region’s commenting fee.
[18] On September 28, 2011, the Region provided comments and additional conditions, including the dewatering condition, to the Township of King. This appears to be the first reference in any materials to the existence of the dewatering condition.
[19] The dewatering condition required 214 to arrange for a subsurface investigation to identify whether dewatering or groundwater depressurization was needed. If the result of the subsurface investigation was that dewatering or groundwater depressurization was required, a plan outlining the dewatering process was required to be submitted to the Region’s Environmental Services Department for approval.
[20] Sometime prior to January 10, 2012, 214 retained Alston Associates Inc. to undertake the required subsurface investigation to identify whether dewatering was needed.
[21] The findings of the subsurface investigation were summarized in a report prepared by Alston Associates Inc. for 214 dated January 31, 2012, which will be referred to as the “January 2012 Alston Report”. The January 2012 Alston Report determined that dewatering was necessary.
[22] A further report by Alston Associates Inc. was prepared for 214 in February of 2012 which will be referred to as the “February 2012 Alston Report”.
[23] No notable events occurred and no relevant actions were taken by any party between the signing of the agreement on June 12, 2012 and October 24, 2012, when the Region wrote to 214 reminding it of the December 17, 2012 agreement deadline and informing 214 that conditions remained outstanding. One of these conditions would turn out to be the dewatering condition.
[24] In response to the October 24, 2012 reminder, 214’s consultant, Brutto Consulting (“Brutto”), set about fulfilling the outstanding conditions, including the dewatering condition.
[25] On November 16, 2012, Brutto submitted responses to the outstanding conditions to the Region, including sending a copy of the January 2012 Alston Report, which concluded that dewatering was necessary. This date, being November 16, 2012, was the first date that the Region was informed by any party that the proposed area of development required dewatering.
[26] On November 20, 2012, Brutto’s responses that were sent to the Region on November 16, 2012 were circulated to various departments of the Region including the Environmental Services Department.
[27] On November 30, 2012, the Region contacted 214’s other consultant, JSW, and advised that a dewatering plan would need to be prepared on the basis of the findings contained in the January 2012 Alston Report.
[28] Also on November 30, 2012, in response to the Region’s advice that a dewatering plan was necessary, Brutto informed the Region that a dewatering plan had already been approved by the Toronto Regional Conservation Authority (TRCA).
[29] On this same date, November 30, 2012, following receipt of Brutto’s response, an employee of the Region called Brutto and left a voicemail advising that the TRCA watering conditions were different from the conditions that the Region had articulated. The voicemail also advised that the TRCA’s approval process is distinct from the Region’s approval process and there remained outstanding requirements for the Region’s dewatering conditions.
[30] On December 5, 2012, 214’s consultant, JSW, emailed the Region outlining probable dewatering plans.
[31] On December 6, 2012, the JSW email was forwarded to a hydro-geologist at the Region who informed the Region that the proposals contained in JSW’s email were not sufficient to satisfy the formal dewatering conditions.
[32] On December 6, 2012, the Region emailed 214’s consultant, JSW, and advised that a formal dewatering plan was required. The Region also provided specific instructions on how to obtain clearance of the dewatering condition.
[33] On December 7, 2012, an employee of JSW left a voicemail message with the Region stating that the caller was not aware that a permit was required regarding the dewatering condition. The JSW employee apologized for his oversight and asked for further clarification.
[34] On December 7, 2012, in response to the JSW voicemail, the Region called JSW and clarified how to satisfy the dewatering condition.
[35] On or about December 10, 2012, 214 retained a further consultant, RWDI, to prepare the formal dewatering plan. On this same date (December 10, 2012), RWDI contacted the Region to request information on the Region’s wells in the proposed area of development. The Region provided the requested information to RWDI within one hour of the request.
[36] On December 14, 2012, a representative from Brutto contacted two separate Region employees to advise that a dewatering plan would be submitted that day but acknowledged that it was unrealistic to expect the Region to review it and provide comments.
[37] Also on December 14, 2012, the Brutto representative asked the Region’s hydro-geologist whether the Region would accept a letter of undertaking that a satisfactory dewatering plan would be submitted in the future. Within 20 minutes of receiving the request that an undertaking be accepted, the hydro-geologist responded that a letter of undertaking was not appropriate in the circumstances.
[38] Despite stating on December 14, 2012 that a dewatering plan would be ready that day, 214 did not submit the dewatering plan until the deadline, being December 17, 2012.
[39] On December 17, 2012, immediately upon receipt of the dewatering plan, the Region’s hydro-geologist began review of the plan. The dewatering plan relied heavily on the February 2012 Alston Report and a further report titled the Natural Heritage Evaluation Report.
[40] The Region informed 214 that the reports referred to in their dewatering plan were not provided. The Region requested the Natural Heritage Evaluation Report and the “hydro-g report referenced in dewatering report”. The Natural Heritage Evaluation Report was provided the afternoon of December 17, 2012. There is no evidence that the “hydro-g report referenced in dewatering report” was ever provided.
[41] On December 18, 2012, the Region continued its review of the dewatering plan and the Natural Heritage Evaluation Report. The Region’s hydro-geologist contacted RWDI to request clarification regarding certain information contained in the dewatering plan as follows:
i. Permanent dewatering rate for a pumping station;
ii. The total maximum permanent dewatering rate for the site; and
iii. The total maximum temporary dewatering rate for the site.
[42] On December 19, 2012, RDWI responded to the Region’s queries and provided the sought after information. On this same date, following receipt of this information, the Region informed 214 that it had satisfied the dewatering condition.
[43] On January 10, 2013, Mr. DiSanto, President of 214, wrote to the Region and requested an extension of the December 17, 2012 deadline given that 214 obtained clearance from the Region on December 19, 2012.
[44] On June 13, 2013, Mr. DiSanto made a deputation for special circumstances to the York Region Finance and Administration Committee.
[45] On September 19, 2013, Mr. DiSanto made a deputation for special consideration to the York Region Committee of the Whole.
[46] On October 25, 2013, the Region received a letter from 214’s counsel informing the Region of 214’s decision to seek relief through this court.
[47] On January 15, 2014, the Plaintiff 214 commenced a claim by issuance of a Statement of Claim against the Region. In response, the Region served and filed a Statement of Defence on the merits of the claim and commenced the present motion for summary judgment.
ANALYSIS
i. Jurisdiction
[48] Given the exclusive jurisdiction of the OMB and the nature of the subject matter (which falls directly within the tribunal’s area of expertise), at first glance it would appear that this court lacks jurisdiction to deal with this matter.
[49] However, despite the wording of s. 36 of the Municipal Act, S.O. 2001, c. 25, and the exclusive jurisdiction it bestows upon the OMB, by engaging the merits of the claim and filing both a statement of defence and a summary judgment motion, the Region of York has attorned to the jurisdiction of the Superior Court of Justice.
[50] As noted by Sharpe J.A. writing for the Court of Appeal for Ontario, in Vincent v. Ottawa (City), 2008 ONCA 345, 44 M.P.L.R. (4th) 5, at para. 14: “We fail to see any basis for holding that the Superior Court lacks jurisdiction to entertain this action, even if, under different circumstances, the OMB does have exclusive jurisdiction to deal with such a situation.”
[51] Parallel to the facts in the present case, the appellant in Vincent had engaged the merits of the claim, including filing a statement of defence. As such, Sharpe J.A. went on to note, at para. 15, that undertaking such actions “disentitled the respondent to any right to now insist on proceedings under the previous settlement”, which would have brought the action out of the Superior Court and into the OMB.
[52] The Region has attorned to the jurisdiction of this court, and it is appropriate that the motion for summary judgment be dealt with by this court on the merits.
ii. Summary Judgment
Availability of Summary Judgment
[53] Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, outlines when a court may grant summary judgment. In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court stated that Rule 20 was amended to improve access to justice. The reforms changed the test for summary judgment from whether a case presents “a genuine issue for trial” to whether there is a “genuine issue requiring a trial” (at para. 43).
[54] The new powers in Rule 20 allow motion judges to weigh evidence, evaluate credibility, draw reasonable inference, and call oral evidence. These new powers expand the number of cases in which there will be no genuine issue requiring a trial, thus demonstrating that a trial is not the default procedure and eliminating the presumption of substantial indemnity costs against a party that brought an unsuccessful motion for summary judgment.
[55] Karakatsanis J., writing for the court, laid out the test to apply when determining whether a summary judgment motion may be granted, at para. 66:
On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.
[56] On the subject of determining whether there is a genuine issue requiring a trial, the SCC referenced the Court of Appeal for Ontario decision in Hryniak v. Mauldin, which suggested that “summary judgment would most often be appropriate when cases were document driven, with few witnesses and limited contentious factual issues, or when the record could be supplemented by oral evidence on discrete points” (at para. 48).
[57] The SCC affirmed that the Court of Appeal’s suggestions are helpful observations, but should not be taken as delineating firm categories of cases where summary judgment should and should not apply; summary judgment may be appropriate in a complex case, with a voluminous record, that has no genuine issue requiring a trial. At para. 49, the SCC further explained that a case where there is no genuine issue requiring a trial will be a case when the process: “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”
[58] When summary judgment allows the judge to find the necessary facts and resolve the dispute, proceeding to trial is generally not proportionate, timely, or cost effective. Alternatively, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute.
[59] The focus should not be on what kind of evidence could be adduced at trial, but rather on whether a trial is required. The evidence simply must be such that I am confident that I can resolve the dispute fairly and justly.
[60] The onus is on the moving party to establish a prima facie case that there is no genuine issue requiring a trial. The onus then shifts to the responding party to show that there is a genuine issue requiring a trial. The responding party must put their best foot forward and cannot simply advise that further or better evidence may be available at trial.
Application of the Law to the Facts
[61] 214 claims against the Region for damages for negligence and breach of contract. 214 alleged that the failure of 214 to register the plan of subdivision by December 17, 2012 was due to the Region’s actions. The damages sought are equal to the difference between the 2007 by-law development charges and the 2012 by-law development charges, or $560,051.
[62] The Region claims that the dispute is properly an action for damages regarding the quantum of development charges that 214 was obligated to pay the Region in respect of the development of a plan of subdivision in the Township of King. The Region alleges that the action was improperly framed as an action for negligence and breach of contract.
[63] I find that the claim cannot succeed, regardless of whether it is framed as an action for damages, for negligence, or for breach of contract. The facts simply do not support any such claims against the Region. In my opinion, the claim is entirely without merit and there are no issues requiring a trial.
a. Negligence and Breach of Duty
[64] In order to establish liability in negligence, 214 is required to establish that a duty of care exists and that the Region fell below the applicable standard of professional care. To this end, 214 is required to provide expert evidence to determine the appropriate standard of care in the circumstances.
[65] Once the standard of care is established, the court makes findings of fact to determine whether the standard was met. If the standard of care is met, there is no need to explore the matter further. However, if the standard of care is breached, factual and legal causation must be considered to determine liability in negligence.
[66] 214 is required on a motion for summary judgment to put their best foot forward and I am entitled to assume that all evidence to be relied upon at trial is before me.
[67] No expert evidence was provided by 214 that would establish the appropriate standard of care to form the basis for breach of any duty or a finding of negligence.
[68] The Supreme Court of Canada has held that expert evidence is only admissible when necessary (R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Abbey, [1982] 2 S.C.R. 24). To this end, Krawchuk v. Sherbak et. al., 2011 ONCA 352, 106 O.R. (3d) 598, establishes that there are two situations where it is acceptable to determine professional negligence without the benefit of expert evidence: (a) where there are non-technical matters of which an ordinary person may be expected to have knowledge; and, (b) where the matter is so egregious that the negligence is obvious (Krawchuk at paras. 130-135).
[69] I find that neither of these two situations apply to the facts before me and there is no basis to find negligence or breach of duty as against the Region.
[70] However, even if the matter fell within the exceptions enumerated in Krawchuk, I find that the basis of the dispute centers on the management of the dewatering condition and is fact-specific. I further find that on the evidence before me that there is no basis to find negligence or breach of duty against the Region regardless of the applicable standard of care.
[71] With respect to the issue of knowledge of the dewatering condition, the Region has provided the following reasons, at para. 101 of its factum, as to why 214 knew or ought to have known of the dewatering condition prior to November 2012:
i. The Region sent out the revised conditions in response to the revised Draft Plan of Subdivision, which included the Dewatering Condition, to King on September 28, 2011;
ii. It would be reasonable for a planning consultant such as Brutto to expect that there would be revised conditions issues after a revised Draft Plan of Subdivision was submitted;
iii. The revised Draft Plan of Subdivision and the revised conditions were considered and approved by Township Council on August 27, 2012;
iv. There was a meeting on August 21, 2012, just before the Council meeting, with 214 and its consultants to discuss the conditions;
v. Someone from Brutto may very well have attended the various meetings of King committees leading up to the approval by Council;
vi. The chart prepared by Ms. Heron-Monk [of Brutto] included in the submission by Brutto to the Region dated November 16, 2012 refer to the Region’s as “The Revised Schedule of Regional Conditions (Sept 2011); and
vii. It is possible that Ms. Heron-Monk at some point saw the Region’s letter of September 28, 2011.
[72] I accept these submissions of the Region as correct and note that there is additional evidence that supports a finding that 214 knew or ought to have known of the dewatering condition prior to November 2012, including the sworn testimony of 214’s (former) president as follows:
i. Mr. DiSanto, then president of 214, in his September 19, 2013 deputation to the York Region Committee of the Whole was asked the following question by the Chair of the Committee and provided the following response:
Chair: When I read the report of our staff, I believe that you were advised or you knew through your consultants or otherwise a dewatering report would be required and you would have known that in January of 2012. That’s what I read in the report. Is that correct, or not?
G. DiSanto: Mr. Chair that is correct and what I tried to address in it is – we knew that the dewatering information was a condition of approval and we had been providing dewatering submissions from our geotechnical consultants and our civil engineers. So we weren’t ignoring the condition. It wasn’t until December 6th that staff came back and said: “We need more information. We need a formal dewatering plan.” And we provided it.
Chair: Okay.
G. DiSanto: So we weren’t ignoring it.
[73] The above exchange evidences that 214 had knowledge of the dewatering condition on or about January 2012.
[74] Mr. DiSanto’s evidence that 214 had knowledge of the dewatering condition in or about January of 2012 is corroborated by the January 2012 Alston Report commissioned by 214. This report notes that Alston Associates Inc. began fieldwork on January 10, 2012 for the purpose of determining whether dewatering was necessary.
[75] Although no evidence was presented to establish when the Region’s revised conditions (including the dewatering condition) were delivered to 214, it is clear that the Township of King received the conditions on or about September 28, 2011.
[76] The submission by 214 that they were not informed of the need for a dewatering plan until November 30, 2012, is simply not sustainable on the evidence. The January 2012 Alston Report clearly concluded that dewatering was necessary. It is logical to conclude that if dewatering is necessary a dewatering plan is required.
[77] Linkage for this assumption is found in the actual wording of the dewatering condition contained in Region’s September 28, 2011 letter to the Township of King, which reads as follows:
Given the proximity of the site to the King City Wells No. 3 and No. 4, construction activities such as deep excavation that may require dewatering or groundwater depressurization have the potential to interfere with the quantity of groundwater available for municipal supply. While the risk of interference to the municipal water supply at this particular location is likely low, should dewatering be required during site development, a dewatering plan is it be prepared for review and approval to the satisfaction of the Regional Environmental Services Department.
[78] As such, the original wording of the dewatering condition patently and obviously requires 214 to undertake two separate steps in order to satisfy the condition in full: (1) determine if there is a need for dewatering by commissioning a geotechnical subsurface investigation (which they did as is reflected by the January 2012 Alston Report); and, (2) prepare a formal dewatering plan based on the findings of that investigation, to be approved by the Region.
[79] I find on the balance of probabilities that 214 knew or ought to have known of the dewatering condition and the necessity for a dewatering plan prior to November 2012 and likely as early as January 31, 2012, being the date of the January 2012 Alston Report. No other conclusion is logical or believable in the circumstances.
b. Principal/Agency Relationship Argument
[80] An alternative argument was advanced by 214 was that even if the Region was not negligent, if the Township of King failed to advise 214 of the dewatering condition, then the Region is liable for this failure on the basis of a principal/agency relationship.
[81] It is not uncommon for developers to be in direct communication with local or lower-tier municipalities (rather than upper-tier municipalities) about requirements pertaining to land use and development. Likewise, it is acceptable for upper-tier municipalities to communicate conditions to lower-tier municipalities, rather than to developers directly; the Region cannot be held at fault for communicating with the Township about the dewatering condition.
[82] The Municipal Act reflects the legislature’s intention not to imbue the relationship between upper- and lower-tier municipalities with anything resembling an agency relationship.
[83] Section 1 of the Municipal Act defines a lower-tier municipality as “a municipality that forms part of an upper-tier municipality for municipal purposes” [emphasis added]. Conversely, in the same section, upper-tier municipalities are defined as “a municipality of which two or more lower-tier municipalities form part for municipal purposes” [emphasis added]. In s. 316(6), lower-tier municipalities are listed and described as being separated from upper-tier municipalities for municipal purposes.
[84] The phrase “for municipal purposes” is the phrase chosen by the legislature to characterize and describe the relationship or connection between each tier of a municipality.
[85] A review of various sections of the Municipal Act that utilize the phrase “for municipal purposes” (ss. 172, 189(2)(b), 189 (1), 191(1)-(2), 307(2), 309, 311(9)(c), 312(9)(c), 313, and 314(6), among others) is instructive to consider how the legislature conceived the relationship between different municipal tiers.
[86] By considering the Act as a whole, it is clear that the phrase “for municipal purposes” equates roughly to “for administrative purposes”. Understood in this light, the joining of upper- and lower-tier municipalities together cannot give rise to a principal/agent relationship or anything even remotely similar to it. It pertains not to the duties or responsibilities each party owes to the other; instead, it squarely focuses on administrative and procedural efficiency.
[87] By contrast, an agency relationship entails fiduciary duties on the part of the agent, which are owed to the principal. The principal/agency relationship is based on consent: a principal must consent for an agent to act on the principal’s behalf and under the principal’s control. Many agency relationships do not require writing; courts will look to the actual relationship between the parties to determine whether it is a principal/agency relationship. In this contextual analysis, issues of mutual consent and the degree of control exercised by the alleged principal are key. The duties that an agent owes to a principal include the duty of care, duty of loyalty, and duty of full disclosure. In return, principals are liable for the actions of their agents; the rationale is that those who gain from the actions of another should be held to answer for the costs inflicted by those actions.
[88] Though the above represents only a very cursory overview of the main principles of principal/agency law, it is necessary to recite these principles here, so that their departure from the picture of the relationship between lower- and upper-tier municipalities that emerges from the Municipal Act is clearly illustrated. There is nothing in the Act, or indeed, in jurisprudential commentary on it, that would suggest any duties owed by lower-tier municipalities to their upper-tier counterparts or any suggestion of liability of the latter for the actions of the former.
[89] Given the obvious lack of an agency relationship between the Region and Township, it is apparent that no action lies against the Region. However, this finding is not intended to be interpreted as any indication that any action lies against the Township of King.
c. Breach of Contract
[90] As to the breach of contract claim raised by 214, I find that even though it was not the Region’s responsibility to remedy either the Township’s alleged failure to inform 214 of the dewatering condition or to clarify the confusion of 214’s consultants as to what would satisfy the dewatering condition, the Region took extraordinary steps to provide assistance to 214.
[91] Despite the assertions of bad faith and breach of duty made by 214, I find on the evidence that the Region did deal in good faith with 214 and put forward its best efforts to assist 214 in meeting the dewatering condition. This is exemplified in the speed at which the Region’s hydro-geologist reviewed the dewatering plan when it was submitted on December 17, 2012. As the Region notes, the turnaround time for reviews of such plans is typically 10 days. In the case at bar, review began immediately.
[92] The Region took other steps that evidence its good faith, including contacting 214 on October 24, 2012 to remind it of outstanding conditions and holding a conference call on December 7, 2012 to clear up confusion as to whether the TRCA approval was applicable to the approval required from the Region. Arguably, it was neither the Region’s responsibility to remind 214 of outstanding conditions or to clarify the confusion on the part of 214’s consultants.
Summary and Conclusions
[93] Quite clearly the loss incurred by 214 was not a result of the Region of York’s action or inaction. There is a lack of proximity and a lack of causation, and the Region fulfilled all of its contractual obligations; 214’s claim against it must fail, and this can be safely concluded on the evidence before me without the need for a full trial.
[94] In the circumstances of this case I find that the evidence submitted is sufficient to (1) allow me to make the necessary findings of fact; and (2) allow me to apply the law to the facts. In the present case based on the facts before me I find that summary judgment is a proportionate, more expeditious, and less expensive means to achieve a just result.
iii. Relief from Forfeiture
[95] The court has jurisdiction to grant relief against penalties and forfeitures under s. 98 of the Court of Justice Act, R.S.O. 1990, c. C.43.
[96] Consideration of the forfeiture issue necessarily involves consideration of whether 214 was penalized for failure to satisfy the terms of the agreement or whether 214 simply did not receive a benefit it would have been otherwise provided pursuant to the terms of the agreement. 214 was not required to pay additional development charges as a form of penalty imposed by the Region for failure to comply with the terms—it simply was required to pay the current applicable development rates.
[97] Simply stated, 214 frames payment of the 2012 development rates as a penalty, whereas the Region rightly notes that payment of the 2012 development charges is not a penalty—it is simply an adherence to the existing by-law. The fact that 214 was required to pay development charges at the 2012 levels as a result of missing the deadline is simply an adherence to the status quo. 214 was denied a benefit, but it was not penalized.
DISPOSITION OF MOTION
[98] For the reasons detailed above, the following Order shall issue:
a) An Order granting summary judgment and dismissing the claim commenced by 214 as against the Region; and,
b) If the parties are unable to agree upon costs, the Region shall have until September 2, 2016, to file costs submissions and 214 shall have until September 20, 2016 to respond. The Region’s reply, if any, shall be served and filed before September 30, 2016. The cost submissions, response, and reply shall each not exceed four pages in length with Bills of Costs attached. If no submissions are filed by September 2, 2016, no costs shall be awarded.
Madam Justice S.J. Woodley Released: July 8, 2016