COURT FILE NO.: CV-16-561498 DATE: 20170421
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
1668135 ONTARIO INC. Applicant – and – THE CITY OF VAUGHAN Respondent
COUNSEL: Tanya A. Pagliaroli, for the Applicant Catherine DiMarco, for the Respondent
HEARD: March 8, 2017
REASONS FOR DECISION
Mr. Justice P.J. Cavanagh
Introduction
[1] The Applicant 1668135 Ontario Inc. is developing a residential subdivision on lands (the “Property”) in the City of Vaughan (the “City”). The development is proceeding in two phases. Phase 1 is a development on the southern portion of the Property, and is now completed. Phase 2 is a development on the northern portion of the Property. Phase 2 is not completed and work is needed to complete the remediation of the Phase 2 lands, servicing of these lands and completion of the subdivision development.
[2] A dispute has arisen between the Applicant and the City in respect of access to the Phase 2 lands through a residential street, Campania Court.
[3] The Applicant submits that it requires access to the Phase 2 lands through Campania Court for the purposes of remediating, servicing and repairing and maintaining the Property which are required before it can enter into a subdivision agreement with the City and complete the development of the residential subdivision. The Applicant submits that it is lawfully entitled to access to the Phase 2 lands through Campania Court.
[4] The City submits that the Applicant is seeking a mandatory final injunction in relation to disputed material facts on an incomplete paper record. The City submits that the evidence does not justify the urgent and immediate remedy of injunctive relief in this complex and long-standing dispute. The City denies that the Applicant is lawfully entitled to access to the Phase 2 lands through Campania Court. The City takes the position that the Applicant had a route to access the Phase 2 lands through the Phase 1 lands to the south and that the Applicant, with its eyes open, blocked its own access to the Phase 2 lands through the work that was done on the Phase 1 development. The City takes the position that it is open to the Applicant to restore access to the Phase 2 lands through the Phase 1 lands, at its own expense.
[5] For the reasons that follow, I have concluded that, pursuant to a Development Agreement made between the parties, the Applicant is entitled to an order allowing it to have access to the Phase 2 lands through Campania Court for the purposes of moving equipment to and from the Phase 2 lands to be used to complete remediation of the Phase 2 lands, and for servicing, maintenance and repair of the Phase 2 lands, but not hauling of waste materials from the Phase 2 lands for disposal off-site.
[6] There are material facts in dispute in relation to the Applicant’s claims for relief based upon a common law right of access and the related ground that the City has exercised its discretion to deny the Applicant access to the Phase 2 lands across the 0.3 metre reserve via Campania Court on improper principles, and these claims must proceed to trial.
Factual Background
[7] The Applicant purchased the Property consisting of the Phase 1 and Phase 2 lands in 2007. The Property is approximately 4.71 hectares and had been used as an unapproved landfill site in the 1970s and 1980s for construction and non-hazardous waste. The site remained vacant until redevelopment was initiated by the Applicant. Waste continues to be located on the Phase 2 lands.
[8] The Applicant’s plan from the outset was to remediate and develop the property for residential use in two phases. First, it would remediate and develop the southern, Phase 1 lands, and then it would remediate and develop the northern Phase 2 lands.
[9] The Property is bordered by a municipal highway, Campania Court, to the north and by Langstaff Road to the south. Langstaff Road connects to Gentile Circle, the road built within the Phase 1 lands. There is no other public highway abutting the property.
[10] The City entered into a Subdivision Agreement with the Applicant dated July 9, 2010 for the Phase 1 lands, and subsequently a Development Agreement with respect to the Phase 2 lands dated August 29, 2014. The Applicant and the City have not executed a Subdivision Agreement for the Phase 2 lands.
[11] Remediation of the Phase 1 lands began in 2008 and construction of new roads and servicing took place in 2009. The Plan of Subdivision was registered in December 2010 and house building commenced in early 2011. The subdivision has not been assumed by the City.
[12] After excavating Phase 1, the waste was stockpiled on the Phase 2 lands as a holding ground. Approximately 90 percent of the fill was re-used on Phase 1. The Applicant trucked the material for reuse from Phase 2 to Phase 1 using off-road vehicles. This was possible because the underground services and roads had not yet been built on Phase 1. After the houses were built on Phase 1, the Applicant used Campania Court to haul material from Phase 2 around back through to Phase 1. Similarly, it used Campania Court to access the materials and equipment necessary for servicing Phase 1.
[13] The remedial action plan for Phase 2 (the “RAP”) provides for access through Campania Court for the purposes of remediation. The RAP recognize that it would be unsafe for certain vehicles to access the Phase 2 lands through the Phase 1 lands, in which case Campania Court would be used.
[14] Phase 2 received draft plan approval on June 18, 2013. One of the conditions of draft approval was at the Applicant implement the RAP. Another condition of draft approval was that the applicant submit the requisite environmental site assessments and a Record of Site Condition (“RSC”) that were required by the Ministry of the Environment and Climate Change (“MOECC”).
[15] The Applicant began hauling waste off of the Property in the spring of 2014 through Campania Court using dump trucks and trailers. Campania Court was used to access the equipment and materials required for servicing. In the spring of 2015 the City caused a public works salt truck to be parked at the southern end of Campania Court, blocking the Applicant’s access to and from its property from Campania Court.
[16] The City and the Applicant then negotiated the terms of a Road Cut Permit agreement (the “Road Cut Permit”), the duration of which was from July 15, 2015 to September 15, 2015. The Road Cut Permit gave the applicant the ability to remove the waste material from the Phase 2 lands via Campania Court rather than to the south of the Property via Gentile Circle. The Road Cut Permit expressly includes the acknowledgement of the Applicant that the work shall be completed by September 15, 2015.
[17] The Applicant did not complete the hauling of waste by September 15, 2015 and the City refused to renew the Road Cut Permit and allow access to the Applicant to the Phase 2 lands through Campania Court. The Applicant provided evidence to explain why the hauling of waste was not completed by September 15, 2015 that does not need to be addressed in these reasons. On September 15, 2015, the City erected a lockable chain-link fence across the southern end of Campania Court which physically blocks access to and from the Phase 2 lands via Campania Court. As of the date of expiry of the Road Cut Permit, there still remained a significant amount of work to completely remove the stockpile of waste material from the Phase 2 lands and to remediate the remaining portions of the western half of the Phase 2 lands.
[18] According to the City’s evidence, the reasons for the City’s refusal to extend the Road Cut Permit included its commitment to local residents that the Road Cut Permit would expire September 15, 2015. The City’s evidence is that the decision was not made by any one individual, but was a City decision.
[19] One of the conditions of draft approval was that the Applicant enter into a subdivision agreement with the City regarding Phase 2. The Applicant’s evidence is that had the Applicant entered into a subdivision agreement with the City, that agreement would have contained an access provision permitting access to and from the property using Campania Court. The Road Cut Permit contained a provision by which the City agreed to expedite the finalization of the subdivision agreement for Phase 2:
- Following the release of the Letter of Credit, and prior to any other crossing of the City’s reserve on Campania Court related to the remediation of the Phase 2 lands, the Owner shall enter another Road Cut Permit Agreement or the subdivision agreement for the Phase 2 draft plan of subdivision. The city agrees to expedite the finalization of the subdivision agreement for the Phase 2 draft plan of subdivision.
[20] On October 7, 2015, Vaughan Council passed a resolution, over the opposition of the Applicant, prohibiting the City from entering into a Subdivision Agreement until the Phase 2 lands are remediated and the RSC was filed. This resolution remains in effect. The City’s evidence is that requiring the Applicant to remediate the lands prior to further development approvals was not a punishment, but more of a “message” that the City wants the land cleaned up before the Applicant proceeds with development.
[21] Following the City’s decision that it would not extend the Road Cut Permit, the Applicant was required to use the Phase 1 lands to complete the removal of waste from the stockpile of waste on the Phase 2 lands. The Applicant’s use of the Phase 1 lands for this purpose continued until the spring of 2016 when the pile was finally gone. The MOECC order has since been removed from title.
[22] Following the Applicant’s removal of waste, the Applicant completed Phase 1 of its development. According to its evidence, it did so in order to fulfil its obligations pursuant to the Phase 1 subdivision agreement and in order to obtain a reduction in its letter of credit. As a result of the completion of the Phase 1 development, there is no longer any feasible access from Gentile Circle to the Phase 2 lands for large vehicles or equipment. The Phase 1 lands are fenced in at the northern limits and there is a steep grade which continues to separate the two phases.
[23] The position taken by the City is that the Applicant blocked its own access from the Phase 2 lands to the Phase 1 lands without first obtaining approval from the City to use Campania Court as an alternative access. The City takes the position that the Applicant can still access and remove material resulting from the remediation of the Phase 2 lands via the Phase 1 lands, and that the work needed to be undertaken and completed in order to allow the Applicant to do so is a matter of cost to the Applicant.
[24] According to the Applicant, approximately 98 percent of the work necessary to obtain an RSC from the MOECC is complete. The outstanding work involves some additional remedial excavation work on the eastern portion of the site. The Applicant has provided evidence that the timeframe to complete the remedial excavation work is 2 to 3 days. Following excavation, the soil will need to be hauled off site for disposal at an MOECC licensed facility.
[25] In addition, the Applicant intends to remediate the lands to the west of the Hydro corridor on the Phase 2 lands. According to the Applicant, the timeframe for this work on the western boundary of the Phase 2 lands is approximately 5 to 8 months, weather permitting.
[26] The Applicant has provided evidence that access to the Phase 2 lands from Campania Court is necessary in order to complete remediation involving excavation of surface soil on the eastern portion of the Phase 2 lands and earthwork activities on the west boundary of the Phase 2 lands. In order to complete this work, heavy equipment will need to be brought onto the site including a track excavator, backhoes, tractor trailer dump trucks and/or triaxle dump trucks. The Applicant has also provided evidence that access from Campania Court to the Phase 2 lands is necessary in order to complete servicing and maintenance including underground servicing, above ground roadworks, landscaping, hydro installation and retaining walls in the parkland, as well as maintenance activities.
[27] In order to complete the remediation, servicing and maintenance work described by the Applicant, heavy equipment will need to be brought onto the Phase 2 lands including track excavators, rubber tire backhoes, tractor-trailer dump trucks and/or triaxle dump trucks. The excavation work cannot be completed without safe, direct access through Campania Court.
[28] It is common practice for landowners to convey a small strip of land (0.3 metre in width) along the street frontage or perimeter of property pursuant to a subdivision or development plan. The Applicant conveyed this 0.3 metre reserve to the City pursuant to the agreements it entered into with the City. The Applicant’s request for an order that it access Campania Court requires an order obligating the City to allow the Applicant to cross the City’s 0.3 metre reserve which exists as a development constraint. The City’s position is that the crossing and lifting of an existing 0.3 metre reserve is a political and policy decision that Vaughan Council is entitled to make.
[29] In addition to this application, the Applicant commenced an action in June 2015 against the City and against three individual employees of the City in which the Applicant seeks damages. This action has been defended.
Analysis
[30] The Applicant relies on the following three grounds for the relief sought on this application:
a. A common law right of access to the Phase 2 lands via Campania Court. b. A right of access to the Phase 2 lands via Campania Court across the City’s 0.3 metre reserve based upon a failure of the City to exercise its discretion to refuse such access to the Applicant upon proper principles. c. The Applicant’s contractual right under its Development Agreement with the City to move equipment to and from the Phase 2 lands via Campania Court on vehicles that are not able to maneuver safely through Phase 1 lands.
[31] The City submits that there are material facts in dispute in relation to the relief sought by the Applicant on this application, and that a proper adjudication of the issues cannot be made on what the City submits is an incomplete paper record.
Should the relief sought by the Applicant be adjudicated on the existing record?
[32] With respect to the first two grounds for the Applicant’s relief, the Applicant submits that at common law an owner of land abutting on a highway has a right of access to the highway from its land: Ducharme v. Tache, [1978] MJ No. 60 (C.A.) at paras. 14, 19 and 21. In response, the City points to the 0.3 metre reserve and submits that any common law right of access that the Applicant may have had has been extinguished by this reserve.
[33] The Applicant submits that a municipality has discretion to lift the 0.3 metre reserve and that the exercise of such discretion must be made based upon proper principles and must not be influenced by extraneous, irrelevant and collateral considerations: Ontario Mission of the Deaf v. The Corporation of the City of Barrie. The Applicant submits that the City’s decision to block access to the Phase 2 lands via Campania Court across the 0.3 metre reserve was not made based upon proper principles but was influenced by factors which were not open to it, including the Applicant’s lawsuit against the City, a desire to placate a small group of residents on Campania Court, and personal animus towards Mr. Gentile, the Applicant’s principal, that the Applicant alleges exists on the part of a municipal employee. The Applicant submits that the City’s actions have been arbitrary and unreasonable.
[34] The City disputes the Applicant’s position with respect to the purpose and rationale for its own development controls. The City maintains that the crossing and lifting of an existing 0.3 metre reserve is a political and policy decision that Vaughan Council is entitled to make.
[35] In my view, the existing evidentiary record is not sufficient for me to fairly adjudicate whether the City has exercised its discretion not to allow the Applicant to have access to the Phase 2 lands across the 0.3 metre reserve on proper development principles. The history of dealings between the Applicant and the City in relation to the Development is long and complex. There are issues that are likely to require findings of credibility with respect to the evidence of Mr. Gentile and the evidence of Mr. Pearce, the City’s Director of Development Engineering & Infrastructure Planning. The effect, if any, which the other litigation between the Applicant and the City may have had on the exercise of the City’s discretion is unclear on the record before me.
[36] My conclusion that there are material facts in dispute relates to the Applicant’s first two grounds for relief that relate to the common law right of access and the exercise of the City’s discretion that was required to have been made on proper development principles to deny access to the Applicant to the Phase 2 lands across the 0.3 metre reserve. I regard these two grounds as related.
[37] I do not reach the same conclusion with respect to the third ground upon which the Applicant relies, that the Development Agreement confers upon the Applicant a contractual right to move heavy equipment needed to remediate, service and repair the Phase 2 lands via Campania Court.
Does the Applicant have a contractual right under the Development Agreement to move equipment needed to remediate and service the Phase 2 lands via Campania Court on vehicles not being able to maneuver safely through Phase 1 lands?
[38] There is no dispute between the parties that the Development Agreement dated August 29, 2014 was made between the Applicant and the City and that it is a valid and enforceable contract.
[39] Section 4 and 13 of the Development Agreement provide:
The Owner shall haul all material to and from the Lands via Gentile Circle (phase 1 lands) and Langstaff Road, with the exception of importing equipment on vehicles not being able to maneuver safely through Phase 1 lands.
The parties agree to execute all additional documentation and perform all further acts as may be necessary to give effect to the terms and conditions of this Agreement.
[40] The Applicant submits that section 4 of the Development Agreement expressly authorizes the Applicant to do what it is seeking to do in this case in order to complete the remediation, servicing and repair of the Phase 2 lands, that is, to move heavy equipment to and from the Phase 2 lands via Campania Court. The Applicant submits that this is authorized by the Development Agreement because it is necessary to import such equipment on vehicles that are not able to maneuver safely through the Phase 1 lands.
[41] The Applicant submits that there is an important distinction between activities relating to remediation, servicing and maintenance of the Phase 2 lands and activities relating to the hauling of materials from the Phase 2 lands for disposal. The Applicant does not submit that hauling of materials from the Phase 2 lands for disposal via Campania Court is contractually authorized by the Development Agreement.
[42] The City also relies on the Development Agreement. The City submits that section 4 of the Development Agreement does not permit the Applicant to use Campania Court to access the Phase 2 lands to haul waste materials offsite for disposal, and that the court should not reverse what the parties agreed to in the Development Agreement and allow the Applicant to haul the Phase 2 waste via Campania Court.
[43] I agree that section 4 of the Development Agreement does not provide for the hauling of waste for disposal from Phase 2 via Campania Court. However, this section is clear that the Applicant has a contractual right to use Campania Court to gain access to the Phase 2 lands to import equipment on vehicles not being able to maneuver safely through the Phase 1 lands. It is also clear, in my view, that section 4 impliedly authorizes the Applicant to use Campania Court to move such equipment from the Phase 2 lands via Campania Court, in other words, to also export such equipment.
[44] The Applicant submits that an order that would have the effect of allowing the Applicant to move equipment onto the Phase 2 lands where such equipment could be used to remediate, service, and repair the Phase 2 lands would simply give effect to the Development Agreement. Remediation of the Phase 2 lands is needed for the Applicant to obtain a RSC to be filed with the MOECC. Without the RSC, and absent an order from the court, the Applicant cannot obtain the Subdivision Agreement for Phase 2 because of Vaughan Council’s resolution prohibiting the City from entering into a Subdivision Agreement until the Phase 2 lands are remediated.
[45] Rule 14.05(3)(d) and (h) of the Rules of Civil Procedure provide that where the relief claimed is the determination of rights that depend on the interpretation of a contract, or in respect of any matter where it is unlikely that there will be any material facts in dispute, a proceeding may be brought by application. In my view, the Applicant’s claim for a remedy requiring the City to comply with section 4 of the Development Agreement is properly brought by application.
[46] The City has characterized the relief sought by the Applicant as one that would require the City to remove the chain-link fence and provide the Applicant with access to the Phase 2 lands via Campania Court. The City submits that this amounts to a request for a mandatory injunction because it requires the City to take positive steps and that the Applicant has not met the high threshold that must be met for a mandatory injunction. The City also submits that it is unclear whether the Applicant is seeking an interlocutory injunction or a permanent injunction.
[47] On its application, the Applicant seeks final, not interlocutory, relief. The Applicant seeks a declaration that it is entitled to access the Phase 2 lands through Campania Court for the purposes of remediating and servicing the Phase 2 lands and registering the plan of subdivision for the Phase 2 lands. The Applicant also seeks an order restraining the City from blocking or unreasonably restricting the Applicant’s access to the Phase 2 lands through the use of Campania Court.
[48] In my view, the relief sought by the Applicant in relation to section 4 of the Development Agreement is not, in substance, a request for a mandatory order. In Robert J Sharpe, Injunctions and Specific Performance (Canada Law Book, Looseleaf Edition) the author notes, at para. 1.540, that it is easy to overstate the added burden imposed by a mandatory order and that “[p]rohibitive orders often have the practical effect of requiring a positive course of action”. In Films Rover International Ltd. v. Cannon Film Sales Ltd., [1987] 1 W.L.R. 670 (Ch.), cited by Sharpe J.A. in his text, Hoffman J. wrote that “semantic arguments over whether the injunction is formulated can properly be classified as mandatory or prohibitory are barren. The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction”.
[49] The substance of the relief claimed by the Applicant in relation to section 4 of the Development Agreement is to restrain the City from interfering with the Applicant’s contractual right to import equipment to and from the Phase 2 lands on vehicles not being able to maneuver safely through Phase 1 lands. The City agreed in section 13 of the Development Agreement to perform all further acts as may be necessary to give effect to the terms and conditions of the Development Agreement. This would include removing barriers such as the chain-link fence.
[50] The equipment that the Applicants seeks to move onto the Phase 2 lands is heavy equipment including a track excavator, backhoes, tractor trailer dump trucks and/or triaxle dump trucks that is needed for the remediation, servicing and repair work to be done on the site. The equipment needed for servicing is a hydro-vac truck which is large and heavy vehicle that, according to the evidence of Mr. Gentile given on behalf of the Applicant, cannot access the manholes other than using Campania Court. This is the type of equipment that is addressed by section 4 of the Development Agreement.
[51] I conclude that the City is obliged under section 4 of the Development Agreement to allow the Applicant to move equipment to be used to remediate, service and maintain the Phase 2 lands via Campania Court (on vehicles not being able to maneuver safely through Phase 1 lands) to and from the Phase 2 lands.
Disposition
[52] I therefore order and declare:
a. The Applicant is entitled, pursuant to section 4 of the Development Agreement, to move equipment to be used to remediate, service, and perform maintenance and repair on the Phase 2 lands via Campania Court (on vehicles not being able to maneuver safely through Phase 1 lands) to and from the Phase 2 lands. b. The City shall, pursuant to its obligations under section 4 and 13 of the Development Agreement, perform all further acts as may be necessary to facilitate the movement by the Applicant of such equipment to and from the Phase 2 lands including opening and allowing passage through the chain-link fence and gate that are in place across the point of access from Campania Court to the Phase 2 lands. c. The balance of the relief sought by the Applicant on this application shall proceed to trial.
[53] The parties shall consult with each other and try to reach agreement on the precise language needed to give effect to this order and so as to avoid future disagreements that may result from any lack of clarity in the language in the order. This consultation should include the requested directions for the trial of the remaining issues on this application, including directions that would ensure that the parties avoid duplication by making efficient use of the affidavit evidence and cross-examinations that have been conducted. The parties should provide me with a draft form of order. If they are unable to agree on the form of order, an appointment may be made with me through my assistant to settle the form of order.
[54] If the parties are not able to resolve issues of costs of this part of the application, they may each make brief written submissions within 30 days, not to exceed 5 pages (excluding the costs outline). Responding submissions may be made within 15 days of receipt of the submissions of the opposing party, not to exceed 5 pages.
Mr. Justice P.J. Cavanagh