Clublink Corporation ULC et al. v. Corporation of the Town of Oakville

[Indexed as: Clublink Corporation ULC v. Oakville (Town)]

Ontario Reports

Ontario Superior Court of Justice

E.M. Morgan J.

December 11, 2018

143 O.R. (3d) 738 | 2018 ONSC 7395

Case Summary

Municipal law — By-laws — Validity — Municipality designating famous golf course as cultural heritage property — Owners of golf course proposing to redevelop land — Municipality enacting five by-laws in order to preserve use of land as golf course — By-laws being ultra vires as they required owners to provide "services or things" in relation to "culture, parks, recreation and heritage" contrary to s. 11(8)5 of Municipal Act — By-laws also enacted in bad faith by ignoring economic impact on owners and effectively requiring owners to maintain property as golf course for benefit of other residents — By-laws vague and unintelligible because they attempted to speak in general terms about policy that was arguably specific to golf course — Municipal Act, 2001, S.O. 2001, c. 25, s. 11(8)5.

The applicants were the owners of a renowned golf course. They proposed to redevelop the property. The respondent municipality had designated the golf course as a cultural heritage property. That designation was not impugned. The respondent also enacted five by-laws in order to preserve the use of the property as a golf course. The applicants brought an application to quash those by-laws.

Held, the application should be allowed.

The by-laws were ultra vires the authority of the respondent to enact them as they required the applicants to provide "services or things" in relation to "culture, parks, recreation and heritage" contrary to s. 11(8)5 of the Municipal Act, 2001. They were also enacted in bad faith as the respondent ignored the economic impact on the applicants and effectively required them to maintain the property as a golf course for the benefit of other residents. In the past, the respondent had acknowledged the fact that the golf course did not represent the most financially valuable use of the property and had attempted to increase the applicants' property tax assessment by attributing to the applicants the notional value of a housing development on the land. Finally, the by-laws were vague and unintelligible because they attempted to speak in general terms about a policy that was arguably specific to the golf course property.

Galganov v. Russell (Township), [2012] O.J. No. 2677, 2012 ONCA 409, 350 D.L.R. (4th) 645, 293 O.A.C. 340, 262 C.R.R. (2d) 123, 99 M.P.L.R. (4th) 1, consd

Other cases referred to

114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42, 2001 SCC 40, 200 D.L.R. (4th) 419, 271 N.R. 201, J.E. 2001-1306, 40 C.E.L.R. (N.S.) 1, 19 M.P.L.R. (3d) 1, REJB 2001-24833, 106 A.C.W.S. (3d) 270; 2312460 Ontario Ltd. v. Toronto (City) (2013), 115 O.R. (3d) 206, [2013] O.J. No. 872, 2013 ONSC 1279, 277 C.R.R. (2d) 22, 8 M.P.L.R. (5th) 220, 226 A.C.W.S. (3d) 576 (S.C.J.); Barrick Gold Corp. v. Ontario (Minister of Municipal Affairs and Housing) (2000), 51 O.R. (3d) 194, [2000] O.J. No. 4426, 193 D.L.R. (4th) 635, 138 O.A.C. 386, 15 M.P.L.R. (3d) 183, 2000 CanLII 16929, 101 A.C.W.S. (3d) 158 (C.A.); British Columbia Lottery Corp. v. Vancouver (City), [1999] B.C.J. No. 79, 1999 BCCA 18, 169 D.L.R. (4th) 141, 118 B.C.A.C. 129, 61 B.C.L.R. (3d) 207, [page739] 1 M.P.L.R. (3d) 1, 85 A.C.W.S. (3d) 542; Canadian Pacific Railway Co. v. Vancouver (City), [2006] 1 S.C.R. 227, [2006] S.C.J. No. 5, 2006 SCC 5, 262 D.L.R. (4th) 454, 345 N.R. 140, J.E. 2006-479, 221 B.C.A.C. 1, 18 M.P.L.R. (4th) 1, 40 R.P.R. (4th) 159, EYB 2006-101575, 88 L.C.R. 161, 145 A.C.W.S. (3d) 1140, affg [2004] B.C.J. No. 653, 2004 BCCA 192, 237 D.L.R. (4th) 40, 196 B.C.A.C. 49, 26 B.C.L.R. (4th) 220, 14 Admin. L.R. (4th) 60, 45 M.P.L.R. (3d) 161, 40 R.P.R. (4th) 201, 322 W.A.C. 49, 81 L.C.R. 241, 129 A.C.W.S. (3d) 1214 (C.A.); ClubLink Corp. ULC v. Oakville (Town), [2017] O.M.B.D. No. 468, 93 O.M.B.R. 374, 2017 CarswellOnt 7477; Cummings v. Vancouver (City), [2016] B.C.J. No. 2186, 2016 BCSC 1918, 54 M.P.L.R. (5th) 269, 92 B.C.L.R. (5th) 154, 272 A.C.W.S. (3d) 173; Entreprises Sibeca Inc. v. Frelighsburg (Municipality), [2004] 3 S.C.R. 304, [2004] S.C.J. No. 57, 2004 SCC 61; Equity Waste Management of Canada v. Halton Hills (Town) (1997), 1997 CanLII 2742 (ON CA), 35 O.R. (3d) 321, [1997] O.J. No. 3921, 103 O.A.C. 324, 40 M.P.L.R. (2d) 107, 74 A.C.W.S. (3d) 297 (C.A.); H.G. Winton Ltd. v. North York (Borough) (1978), 1978 CanLII 1566 (ON SC), 20 O.R. (2d) 737, [1978] O.J. No. 3488, 88 D.L.R. (3d) 733, 6 M.P.L.R. 1, [1978] 2 A.C.W.S. 384 (Div. Ct.); Hamilton Independent Variety and Confectionary Stores Inc. v. Hamilton (City), 1983 CanLII 3114 (ON CA), [1983] O.J. No. 3, 143 D.L.R. (3d) 498, 4 C.R.R. 230, 20 M.P.L.R. 241, 17 A.C.W.S. (2d) 490 (C.A.); Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326, [1991] S.C.J. No. 14, 78 D.L.R. (4th) 175, 121 N.R. 323, J.E. 91-395, 38 Q.A.C. 253, 5 M.P.L.R. (2d) 1, EYB 1991-67741, 25 A.C.W.S. (3d) 730; Law Society of Upper Canada v. Barrie (City) (2000), 2000 CanLII 22319 (ON SC), 46 O.R. (3d) 620, [2000] O.J. No. 9, 183 D.L.R. (4th) 757, [2000] O.T.C. 697, 11 M.P.L.R. (3d) 89, 94 A.C.W.S. (3d) 161 (S.C.J.); Lorraine (Ville) v. 2646-8926 Québec inc., [2018] S.C.J. No. 35, 2018 SCC 35, 2018EXP-1877, EYB 2018-296204, 75 M.P.L.R. (5th) 1, 7 L.C.R. (2d) 157, 423 D.L.R. (4th) 632, 293 A.C.W.S. (3d) 330; Luxor Entertainment Corp. v. North York (1996), 1996 CanLII 11766 (ON SC), 27 O.R. (3d) 259, [1996] O.J. No. 360, 31 M.P.L.R. (2d) 149, 60 A.C.W.S. (3d) 1062 (Gen. Div.); Markham v. Sandwich South (Township), [1998] O.J. No. 2183, 160 D.L.R. (4th) 497, 110 O.A.C. 79, 46 M.P.L.R. (2d) 179, 79 A.C.W.S. (3d) 1048, 1998 CanLII 5312 (C.A.); Montréal (City) v. Arcade Amusements Inc., 1985 CanLII 97 (SCC), [1985] 1 S.C.R. 368, [1985] S.C.J. No. 16, 18 D.L.R. (4th) 161, 58 N.R. 339, J.E. 85-414, 29 M.P.L.R. 220, 30 A.C.W.S. (2d) 481; Niagara Falls (City) v. Jorgensen, 1995 CanLII 7021 (ON CA), [1995] O.J. No. 2275, 84 O.A.C. 149, 29 M.P.L.R. (2d) 1, 28 W.C.B. (2d) 249 (C.A.); Niagara-on-the-Lake (Town) v. Gross Estate (1993), 1993 CanLII 8509 (ON CA), 12 O.R. (3d) 1, [1993] O.J. No. 115, 100 D.L.R. (4th) 1, 60 O.A.C. 98, 13 M.P.L.R. (2d) 11, 28 R.P.R. (2d) 165, 37 A.C.W.S. (3d) 1138 (C.A.); Oakville (Town) v. Clublink Corp. ULC, [2018] O.J. No. 5542, 2018 ONSC 6386 (S.C.J.); Pedwell v. Pelham (Town), 2003 CanLII 7488 (ON CA), [2003] O.J. No. 1774, 174 O.A.C. 147, 37 M.P.L.R. (3d) 161, 122 A.C.W.S. (3d) 572 (C.A.); R. v. Greenbaum, 1993 CanLII 166 (SCC), [1993] 1 S.C.R. 674, [1993] S.C.J. No. 24, 100 D.L.R. (4th) 183, 149 N.R. 114, J.E. 93-463, 61 O.A.C. 241, 10 Admin. L.R. (2d) 161, 79 C.C.C. (3d) 158, 19 C.R. (4th) 347, 14 M.P.L.R. (2d) 1, 18 W.C.B. (2d) 533; R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, [1992] S.C.J. No. 67, 93 D.L.R. (4th) 36, 139 N.R. 241, J.E. 92-1019, 114 N.S.R. (2d) 91, 74 C.C.C. (3d) 289, 43 C.P.R. (3d) 1, 15 C.R. (4th) 1, 10 C.R.R. (2d) 34, 34 A.C.W.S. (3d) 1092, 16 W.C.B. (2d) 460; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, [1990] S.C.J. No. 52, 109 N.R. 81, [1990] 4 W.W.R. 481, J.E. 90-907, 68 Man. R. (2d) 1, 56 C.C.C. (3d) 65, 77 C.R. (3d) 1, 48 C.R.R. 1, 10 W.C.B. (2d) 191; Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, [1959] S.C.J. No. 1, 16 D.L.R. (2d) 689; Shell Canada Products Ltd. v. Vancouver (City), 1994 CanLII 115 (SCC), [1994] 1 S.C.R. 231, [1994] S.C.J. No. 15, 110 D.L.R. (4th) 1, 163 N.R. 81, [1994] 3 W.W.R. 609, J.E. 94-374, 41 B.C.A.C. 81, 88 B.C.L.R. (2d) 145, 20 Admin. L.R. (2d) 202, 20 M.P.L.R. (2d) 1, 46 A.C.W.S. (3d) 132; Spellman v. Essex (Town), 2002 CarswellOnt 5112; St. Peter's Evangelical Lutheran Church (Ottawa) v. Ottawa (City), 1982 CanLII 60 (SCC), [1982] 2 S.C.R. 616, [1982] S.C.J. No. 90, 140 D.L.R. (3d) 577, 45 N.R. 271, J.E. 82-1180, 14 O.M.B.R. 257, 20 M.P.L.R. 121, 17 A.C.W.S. (2d) 58; Superior Propane Inc. v. York (1995), 1995 CanLII 415 (ON CA), 23 O.R. (3d) 161, [1995] O.J. No. 1210, 123 D.L.R. (4th) 445, 80 O.A.C. 362, [page740] 17 C.E.L.R. (N.S.) 1, 27 M.P.L.R. (2d) 1, 54 A.C.W.S. (3d) 1240 (C.A.); Toronto Taxi Alliance Inc. v. Toronto (City), [2015] O.J. No. 396, 2015 ONSC 685, 33 M.P.L.R. (5th) 103, 249 A.C.W.S. (3d) 442 (S.C.J.); Wainfleet Wind Energy Inc. v. Wainfleet (Township) (2013), 115 O.R. (3d) 64, [2013] O.J. No. 1744, 2013 ONSC 2194, 10 M.P.L.R. (5th) 136, 75 C.E.L.R. (3d) 39, 228 A.C.W.S. (3d) 558 (S.C.J.)

Statutes referred to

Municipal Act, 2001, S.O. 2001, c. 25, ss. 8(3) [as am.], 11 [as am.], (3)5, (8), 5., 273(1), (2)

Ontario Heritage Act, R.S.O. 1990, c. O.18, ss. 29 [as am.], 33 [as am.], 34 [as am.], (1) [as am.], Part V [as am.]

Authorities referred to

Allen, Douglas, "Transaction Costs", in: Encyclopedia of Law and Economics, vol. I: The History and Methodology of Law and Economics, Bouckaert, Boudewijn and De Geest, Gerrit, eds. (Chelthenham: Edward Elgar Press, 2000)

Rogers, Ian MacFee, The Law of Canadian Municipal Corporations, 2nd ed. (Toronto: Carswell, 1971)

Aquinas, Thomas, The Summa Theologica (2nd ed., 1920)

APPLICATION to quash by-laws.

Earl Cherniak, Cynthia Kuehl and Mark Flowers, for applicants.

Sandra Barton, Rodney Northey, Jennifer King and Nadia Chandra, for respondent.

E.M. MORGAN J.: —

I. The By-laws and Conservation Plan in Context

[1] The applicants, Clublink Corporation ULC and Clublink Holdings Limited (together, "Clublink"), the owner of the renowned Glen Abbey Golf Course, seek to quash five by-laws enacted by the respondent, Corporation of the Town of Oakville (the "Town"), as well as a resolution of the Town council approving a Cultural Heritage Landscape Conservation Plan for Glen Abbey (the "Conservation Plan").

[2] The by-laws and resolution in issue here all follow on the heels of the Town's By-Law 2017-138, enacted on December 20, 2017 (the "Designation By-law"), in which the Town designated the Glen Abbey property and the adjacent Greeneagle property (together, the "Golf Course" or "Glen Abbey"), as a cultural heritage property under s. 29 of the Ontario Heritage Act, R.S.O. 1990, c. O.18 ("OHA"). Much of the background to this is set out in my judgment in a previous application between these parties, Oakville (Town) v. Clublink Corp. ULC, [2018] O.J. No. 5542, 2018 ONSC 6386 (S.C.J.), and I will not repeat that background here. [page741]

[3] The impugned by-laws include the Cultural Heritage Landscape Conservation Plan By-law 2018-19 (the "CHL By-law"), which requires the preparation of a conservation plan for all protected heritage properties with a "cultural heritage landscape" in the Town. They also include the Conservation Plan and four related by-laws which incorporate reference to and rely on the CHL By-law: the OHA Delegation Powers By-law 2018-020, By-law 2018-042 to amend Oakville's Property Standards By-law 2017-007, By-law 2018-043 to amend the Private Tree Protection By-law 2017-038 and By-law 2018-044 to amend the Site Alteration By-law 2003-021 (collectively, the "Impugned By-laws").

[4] With the exception of the Conservation Plan, which is specific to Glen Abbey, all of the Impugned By-laws, including the CHL By-law which is the key to the Town's policy in respect of the cultural heritage properties, are on their face by-laws of general application. Their overall effect is to implement the cultural heritage policy for designated properties and districts within the Town. Generally speaking, the Impugned By-laws require the creation of conservation plans, set out criteria for granting the required permission for alterations of affected properties, delegate authority to Town officials and staff in respect of such decisions, and implement various rules for dealing with cultural heritage properties, properties with cultural heritage landscapes and properties in cultural heritage districts.

[5] Clublink challenges all of the Impugned By-laws. It focuses its argument, however, on the CHL By-law and the Conservation Plan formulated pursuant thereto. These represent the most substantive impact on it, with the others being more in the nature of mechanical implementational by-laws. Counsel for Clublink therefore approaches its submissions with the view that the validity of all of the Impugned By-laws rises or falls with the validity of the CHL By-law and the Conservation Plan. Likewise, counsel for the Town has approached the defence of the Impugned By-laws by focusing primarily on the CHL By-law and the Conservation Plan. The analysis here will follow the same pattern. The CHL By-law and Conservation Plan are at the core of the case, with the validity of all of the Impugned By-laws turning on the validity of those two.

[6] Clublink submits that the Impugned By-laws are ultra vires the Town and are in conflict with provincial legislation that prohibits the enactment of by-laws addressing services and other things related to recreation and culture. Second, Clublink submits that the Town's conscious disregard of the financial consequences of the Impugned By-laws, and the singling out of Glen Abbey in the enforcement of the Impugned By-laws, reflect the [page742] Town's bad faith in enacting them. Third, it is Clublink's position that enactment of by-laws aimed specifically at its property, but drafted in general rather than specific language, has resulted in them being vague and unintelligible.

[7] The Town submits that it is following the letter of the OHA and the Municipal Act, 2001, SO 2001, c. 25 (the "Municipal Act") and is implementing a cultural heritage strategy which it is legislatively mandated to pursue. It states that Glen Abbey is one of some 30 properties that have been identified by it as having cultural heritage value and denies that Clublink's property has been singled out for different or biased treatment. Counsel for the Town describes the Impugned By-laws as procedural only and argues that they were enacted to implement in an orderly way a cultural heritage scheme over which the Town already has statutory authority. The Town's counsel also points out that the designation of the Golf Course as having culture heritage value comes from provincial direction. In this, the Town relies on the Ministry of Culture, Heritage Property Evaluation (2014), a policy guide or took kit which includes golf courses among the types of properties that municipalities might consider in implementing a cultural heritage strategy.

[8] For greater clarification, the validity of the Designation By-law, enacted under authority of the OHA, is not one of the Impugned By-laws and is not itself in issue in this application. Clublink's own redevelopment plan for Glen Abbey, which was submitted at roughly the same time as the Town was considering the designation of Glen Abbey under the OHA and which proposes transforming the Golf Course to residential housing use, is equally not at issue in this application. The Town's response to Clublink's redevelopment proposal, being an official plan amendment and a site-specific zoning by-law prohibiting new building on the property except for golf-related structures, is likewise not at issue here.

[9] It is the Town's position that the Impugned By-laws must be analyzed in their own right, without commingling them with an evaluation of the Designation By-law or the re-development proposal and the Town's responses thereto. By contrast, it is Clublink's position that the Impugned By-laws are part and parcel of an overall scheme directed at undermining its property rights, and that the cultural heritage designation and the Town's opposition to redeveloping Glen Abbey for residential housing, cannot be divorced from an analysis of the Impugned By-laws implementing those measures.

[10] Both sides overstate the position. Although the Impugned By-laws are obviously front and centre, the background controversy is important for context and understanding. By way of [page743] analogy, if this were a contractual case, one would say that the general business background of a transaction cannot be permitted to shift focus away from the actual terms of the contract sought to be enforced. Simultaneously, one would say that the contentious terms of a contract cannot be interpreted in a vacuum and without an understanding of the business context of which the transaction is a part.

[11] The overarching controversy between Clublink and the Town over the future of the Glen Abbey property forms the factual background for the present dispute, but that overall controversy is not all formally before me. In order to do justice to the Town's enactment of the Impugned By-laws, I must consider them in their own right without being distracted by other measures not currently being challenged. Simultaneously, in order to do justice to Clublink's challenge to the Impugned By-laws, I must consider them in the larger factual and policy context in which they have been enacted without being diverted into a narrow and decontextualized focus on the text of the Impugned By-laws.

II. Ultra Vires

[12] Under s. 273(1) of the Municipal Act, "the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality". Since a "'by-law' includes an order or resolution" [s. 273(2)], all of the Impugned By-laws, including the Conservation Plan, are open to be challenged on this basis.

[13] The Town, like all municipalities, is a creature of the province and can exercise only those powers conferred by provincial legislation: R. v. Greenbaum, 1993 CanLII 166 (SCC), [1993] 1 S.C.R. 674, [1993] S.C.J. No. 24, at pp. 687-88 S.C.R. This principle of delegated legislative authority makes the ultra vires doctrine relevant to a municipal by-law or resolution. As it is put in Rogers, The Law of Canadian Municipal Corporations, 2nd ed. (Toronto: Carswell, 1971), p. 344, "Although it is said that by-laws are similar to statutes, they are still 'inferior' laws and cannot usurp the authority of or be contrary to higher law."

[14] Counsel for Clublink concedes that the Town has considerable latitude in enacting by-laws within the general framework of provincial legislation. Absent breach of a specific statutory imperative or prohibition, municipalities have long been accorded deference in the exercise of their by-law powers. Morden J.A. stated in Niagara-on-the-Lake (Town) v. Gross Estate (1993), 1993 CanLII 8509 (ON CA), 12 O.R. (3d) 1, [1993] O.J. No. 115 (C.A.), at p. 8 O.R., that "It is not evasion to do something contrary to the policy of a statute if the conduct is not prohibited by its terms, express or implied." One [page744] must therefore look carefully at the terms of any statute to which a municipal enactment is alleged to run contrary.

[15] That said, an assessment of the legality of a by-law thus entails an analysis of not only its form but its substance. And while the test for ultra vires in the municipal context has become increasingly stringent over time, it has always been the case that a city council cannot act contrary to its statutory mandate by cloaking an overreaching by-law in what might otherwise seem to be acceptable language [Barrick Gold Corp. v. Ontario (Minister of Municipal Affairs and Housing (2000), 51 O.R. (3d) 194, [2000] O.J. No. 4426, 2000 CanLII 16929 (C.A.), at para. 59, citing Rogers, at p. 1021]:

A by-law which is ostensibly within the authority of a council to enact may be set aside or declared invalid if its real purpose and attempt is to accomplish by indirect means an object which is beyond its authority . . . Hence, the court must always "in examining a by-law, see that it is passed for the purpose allowed by a statute and that such purpose is not resorted to as a pretext to cover an evasion of a clear statutory duty".

[Citation omitted]

[16] Counsel for the Town submits that there is ample legislative authority for the CHL By-law and Conservation Plan. They rely on the general by-law making powers and spheres of jurisdiction contained in s. 8(3) of the Municipal Act and make the point that the Town may enact specific by-laws under this general grant of authority: Galganov v. Russell (Township), [2012] O.J. No. 2677, 2012 ONCA 409, at para. 27. The Town also relies on s. 11(3)5 of the Municipal Act, which authorizes Town council to enact by-laws in respect of "culture, parks, recreation and heritage".

[17] Counsel for Clublink takes issue with this interpretation of the Town's authority. They submit that the Town's jurisdiction is statutorily limited in an important way. Specifically, s. 11(8) of the Municipal Act, provides:

11(8) The power of a municipality to pass a by-law under subsection (3) under the following spheres of jurisdiction does not, except as otherwise provided, include the power to pass a by-law respecting services or things provided by any person, other than the municipality or a municipal service board of the municipality, of the type authorized by that sphere:

1. Public utilities.

2. Waste management.

3. Highways, including parking and traffic on highways.

4. Transportation systems, other than highways.

5. Culture, parks, recreation and heritage.

6. Parking, except on highways.

(Emphasis added) [page745]

[18] It is Clublink's position that the Impugned By-laws require it to provide a service in relation to "culture, parks, recreation and heritage". The Conservation Plan, for example, defines the cultural heritage of Glen Abbey in relation to the services it provides. Article 2.3 of the Conservation Plan is entitled "Description of heritage attributes". It borrows its description from the Designation By-law which preceded it and provides a blueprint for its implementation. The Conservation Plan provides not only that physical features of Glen Abbey be preserved, but that services provided on the Golf Course continue indefinitely into the future.

[19] Those services -- the business of running a golf course with all of its recreational facilities serviced, game-ready and available for use -- fall within the Conservation Plan's identification of the property's heritage attributes. Indeed, Clublink contends that the continued provision of services lies at the very core of the Conservation Plan's requirements for Glen Abbey, and that this focus on the service business of running the Golf Course, as opposed to the preservation of physical aspects of the property, is patent in the terms of the Conservation Plan.

[20] The Conservation Plan declares that it is implementing those provisions of the OHA that, for a designated property, "prohibit any alteration of a heritage property that is likely to affect its heritage attributes". The services included within Glen Abbey's heritage attributes, as described in the Conservation Plan, are

-- The historic use and ongoing ability of the property to be used for championship, tournament and recreational golf;

-- The historic use and ongoing ability to host championship and other major tournaments, such as the Canadian Open;

-- The close and ongoing association of the course with the Jack Nicklaus design and his firm Nicklaus Design[.]

[21] These features are termed essential to the "contextual value" of the Glen Abbey property, as set out in art. 2.1 of the Conservation Plan:

The Property is a landmark within the Town of Oakville. The quality of the golf course, and its connection to the Canadian Open, have been important in defining the character of this community and giving it a distinct place within the larger Toronto metropolitan area, and beyond . . .

The Property retains a high level of authenticity and integrity, continuing to host tournament, championship and recreational golf[.]

[22] In argument, counsel for the Town stress the physical features of the property, and not its use, as comprising its defining, cultural heritage elements. However, it is obvious from the [page746] Conservation Plan that the central heritage value of Glen Abbey is its ongoing use as a high quality golf course. Its design and vistas are in support of that service provided by the owner of the property, not the other way around. It is the service business of the Golf Course -- "continuing to host tournament, championship and recreational golf" -- that is preserved under the Conservation Plan. Although this business is certainly wed to the physical features of the property, it is running an ongoing, live recreational facility that the essence of the attributes Conservation Plan addresses.

[23] Article 1 of the Conservation Plan introduces its purpose: to "[provide] guidance to the landowner and the Town and provides information to all persons interested in the conservation of this significant heritage resource". In addition, the Plan "is intended to provide a clear and efficient process to assess proposed alterations and ensure that proposed alterations meet applicable heritage requirements". This purpose -- identifying and preserving the property's heritage requirements -- was articulated in keeping with the "Scope of Work" document produced as an addendum to the September 26, 2017 meeting of the Heritage Oakville Advisory Committee which formulated the parameters of the Conservation Plan. That document expressly stated that the purpose of the Conservation Plan was to "address how Glen Abbey can be managed and used as a golf course for championship and recreational play".

[24] Accordingly, the heritage requirements in the Conservation Plan are geared toward ensuring that any alterations preserve the ability of the Golf Course to host tournament and recreational play. If Clublink were to exit the service business of providing a golfing facility, and transform itself into a wilderness management company that simply preserves the property's aesthetic vistas, the terms of the Conservation Plan, and therefore the CHL By-law that authorized its enactment, would be breached. As stated in art. 2.1 set out above, it is the "ongoing use" that renders the Golf Course in compliance with the Conservation Plan.

[25] Counsel for Clublink also submits that by requiring alterations to Glen Abbey to be done in accordance with the Conservation Plan, the CHL By-law and the Conservation Plan effectively legislate not only for services but for "things provided by [Clublink]" in respect of "Culture, parks, recreation and heritage". As indicated above, a Town enactment to this effect runs contrary to the terms of s. 11(8)5 of the Municipal Act.

[26] In Galganov, supra, the Court of Appeal explored the meaning of a "thing" as used in s. 11 of the Municipal Act. In that [page747] case, the municipality enacted a by-law implementing a bilingualism policy which, among other things, regulated language use on commercial signs. Weiler J.A., for a unanimous court, found signage to be well within the applicable definition of a "thing" (at para. 31):

The word "thing" is defined as "a material or non-material entity, idea, action, etc., that is or may be brought about or perceived": see Canadian Oxford Dictionary, 2d ed., sub verbo "thing". The enactment of the By-law respecting commercial exterior signs is an action taken by the Township relating to a material entity (signs) or a non-material entity or idea (well-being of persons). I would reject Brisson's argument that the By-law is not in relation to a "thing".

[27] The Conservation Plan contains two schedules of items to which the Town's regulatory powers apply, which require the Town's consent in order to be altered. These schedules identify "Category B Alterations", which require the approval of Town staff in order for Clublink to alter them in any way, and "Category C Alterations", which require the approval of Town council for alteration. The two categories are itemized in Schedules 5 and 6 of the Conservation Plan:

Category B Alterations

1. Addition/removal/replacement of, or other changes to permanent hard landscaping features, as follows:

a. parking lots,

b. patios,

c. in ground planters,

d. fences,

e. gates,

f. walls,

g. trellises,

h. arbours,

i. gazebos.

2. Addition/removal/replacement of, or other changes to, permanent signage . . .

Category C Alterations

1. Construction or removal of a new permanent building or structure that is greater than 15 square metres (or 161 square feet);

2. Addition or partial removal of a permanent building or structure, that has a total footprint, including all open porches and spaces, that is greater than 15 square metres (or 161 square feet); [page748]

3. Addition or removal of:

a. more than four trees;

b. water bodies or water courses, including water hazards;

c. bunkers, mounds, berms, greens, fairways, roughs, tees and practice facilities, except of the addition/removal of a single bunker, mound or berm which is a Category B alteration;

d. a hole;

e. an internal road[.]

[28] It takes no special mastery of analogy to see that parking lots, patios, gates, fences, gazebos, bunkers, etc. are analogous to signage. If, according to the Court of Appeal, signage is identifiable as a "thing" addressed in a language by-law, then parking lots, gates and bunkers, must be "things" addressed in a golf course Conservation Plan. In fact, if it were not already obvious that the Conservation Plan regulates "things" in respect of culture and recreation, it expressly requires Town approval of all additions, removals, replacements, or any other changes to "permanent signage" at Glen Abbey. Thus, when the subtitle of the CHL By-law proclaims itself "A by-law to govern cultural heritage landscape conservation plans within the Town of Oakville and to delegate certain powers to designated officials", the reference is to the Town's governance of, among other things, the very "thing" -- signage -- that the Court of Appeal says is beyond the boundaries of municipal authority.

[29] Counsel for Clublink states in their written submissions that in enacting the CHL By-law and fashioning the Conservation Plan for Glen Abbey, the Town "seeks to accomplish indirectly what it cannot do directly: using a heritage designation to compel a particular use of the Glen Abbey property". Given the type of "services" and "things" which these instruments purport to govern, it is difficult not to agree with that conclusion. There is nothing of cultural heritage value in a tee, green, fairway, hole, bunker, etc. if these "things" are divorced from the "service" of providing a usable golf course. Jack Nicklaus installed 18 holes in the Glen Abbey property not to aerate the grasslands, but to be used by golfers in playing their game. Under the CHL By-law and the accompanying Conservation Plan, it is the game and the attendant golfing services that are preserved.

[30] I note in passing that the Conservation Plan sets out the procedures to be followed in applying for heritage review in respect of a proposed alteration of the property. Further, the Conservation Plan provides that Category C Alterations, which are set out above and for which Town council's approval is [page749] required, include the removal of all or part of a building or structure. In the words of art. 5 of the Conservation Plan, the purpose of these procedures is "to ensure compliance with section 33 of the Ontario Heritage Act".

[31] Counsel for Clublink submits that this amounts to a contradiction of s. 34 of the OHA, which provides that applications for the removal or demolition of a building or structure on a designated property are to proceed under s. 34 of the OHA. The previous application between the Town and Clublink discussed in my judgment at Oakville (Town), supra,was concerned with the distinction between these two procedural routes. I found, at para. 45, that "Clublink has the right to make an application to the Town under s. 34(1) of the OHA for demolition and/or removal of buildings on the Property and of the other structures of which the Golf Course is comprised."

[32] The current test for a by-law being found ultra vires a provincial statute is modeled on the Supreme Court's approach to federal-provincial legislative conflict. The test was prominently articulated Beetz J. in Montréal (City) v. Arcade Amusements Inc., 1985 CanLII 97 (SCC), [1985] 1 S.C.R. 368, [1985] S.C.J. No. 16, at p. 404 S.C.R.: "otherwise valid provincial statutes which are directly contrary to federal statutes are rendered inoperative by that conflict. Only the same type of conflict with provincial statutes can make by-laws inoperative" [emphasis in the original; citation omitted]. The British Columbia Court of Appeal later put the test succinctly: "A true and outright conflict can only be said to arise when one enactment compels what the other forbids.": British Columbia Lottery Corp. v. Vancouver (City), 1999 BCCA 18, [1999] B.C.J. No. 79, 169 D.L.R. (4th) 141 (C.A.), at pp. 47-48. This "impossibility of dual compliance" test was reiterated by the Supreme Court in 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40, [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42, at para. 46, which confirmed that the municipal law test of ultra vires based on contradiction is a stringent one.

[33] In the present case, the question is whether the by-law [at para. 7] "negates the operating effect" of the provincial law: Superior Propane Inc. v. York (1995), 1995 CanLII 415 (ON CA), 23 O.R. (3d) 161, [1995] O.J. No. 1210 (C.A.). In my view, it cannot be said that the Conservation Plan's establishment of procedures for an application under s. 33 of the OHA is a form of compelled violation of s. 34 of the OHA. The two sections provide alternative routes; and although the Conservation Plan is incomplete in omitting s. 34, it does not exactly compel a violation of s. 34 of the OHA.

[34] As I indicated in my previous judgment, "Clublink has the right to make an application to the Town under s. 34(1) of the [page750] OHA for demolition and/or removal of buildings on Property and of the other structures of which the Golf Course is comprised": Oakville (Town), supra, at para. 45. That applies regardless of the narrower terms of the Conservation Plan. In this sense, "[c]ompliance with the provincial Act does not necessitate defiance of the municipal By-law; dual compliance is certainly possible": Law Society of Upper Canada v. Barrie (City) (2000), 2000 CanLII 22319 (ON SC), 46 O.R. (3d) 620, [2000] O.J. No. 9 (S.C.J.), at pp. 629-30 O.R.

[35] That said, the regulation by the CHL By-law and Conservation Plan of the provision of "service or things" by a private landowner in respect of "Culture, parks, recreation and heritage" does amount to a direct contradiction to the prohibition in s. 11(8)5 of the Municipal Act. It is axiomatic that "A municipality must exercise its powers in accordance with the purposes sought by the legislature": Immeubles Port Louis Ltée v. Lafontaine (Village), 1991 CanLII 82 (SCC), [1991] 1 S.C.R. 326, [1991] S.C.J. No. 14, at p. 349 S.C.R. I understand the Supreme Court's admonition that, "Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold": Shell Canada Products Ltd. v. Vancouver (City), 1994 CanLII 115 (SCC), [1994] 1 S.C.R. 231, [1994] S.C.J. No. 15, at p. 244 S.C.R. Here, however, the Town has provided just such a clear demonstration.

[36] In s. 11(8)5 of the Municipal Act, the legislature expressly established areas where municipalities are not to tread, and yet that is precisely where the Town has gone in the CHL By-law and the Conservation Plan. This kind of direct contravention of a statutory provision limiting the Town's power meets the Spraytech test of invalidity: as between the power to legislate in ss. 8(3) and 11(3)5 of the Municipal Act and the specific prohibition not to legislate in s. 11(8)5, dual compliance is impossible.

[37] The Supreme Court of Canada has very recently confirmed that a by-law exhibiting this kind of excess of conferred jurisdiction is illegal and is subject to being quashed. "An abuse of power occurs where a public body exercises its power of regulation unlawfully, that is, in a manner inconsistent with the purposes the legislature was pursuing in delegating the power": Lorraine (Ville) v. 2646-8926 Québec inc., [2018] S.C.J. No. 35, 2018 SCC 35, at para. 26. The Impugned By-laws were enacted without a proper purpose under the Municipal Act and in direct contradiction to a specific statutory limitation of the Town's authority. For that reason, they are ultra vires the authority of the Town to enact them.

III. Bad Faith

[38] The finding that the Impugned By-laws are directly contrary to the provincial legislation that conferred the power to [page751] enact them can bring the analysis of those by-laws to an end. Strictly speaking, it does not matter whether they were enacted in good or bad faith, or whether they are drafted in a way that is clear or vague; municipal by-laws that are not legislatively authorized cannot stand.

[39] I am cognizant, however, that the parties spent a substantial amount of time and effort on the issues of bad faith and vagueness, and that these issues formed a central part of Clublink's challenge to the Impugned By-laws. For the sake of completeness, therefore, I will proceed to address them as well.

[40] The first thing to note is that ultra vires and bad faith are not unrelated to each other. The Court of Appeal has opined that one strong indicator of bad faith on the part of a municipal council is the passing of a by-law that is not statutorily authorized: Markham v. Sandwich South (Township), [1998] O.J. No. 2183, 1998 CanLII 5312 (C.A.), at para. 2.

[41] The Court of Appeal has stated on numerous occasions that "illegality under s. 136(1) [now s. 273(1) of the Municipal Act] includes bad faith": Equity Waste Management of Canada v. Halton Hills (Town) (1997), 1997 CanLII 2742 (ON CA), 35 O.R. (3d) 321, [1997] O.J. No. 3921 (C.A.), at para. 28. Generally speaking, "[b]ad faith by a municipality connotes a lack of candour, frankness and impartiality": ibid., at para. 61. To be clear, the allegation of bad faith is not a personal criticism of Town officials or council and does not connote individual wrongdoing. As Robins J. described it in H.G. Winton Ltd. v. North York (Borough) (1978), 1978 CanLII 1566 (ON SC), 20 O.R. (2d) 737, [1978] O.J. No. 3488 (Div. Ct.), at pp. 744-45 O.R.:

To say that council acted in what is characterized in law as "bad faith" is not to imply or suggest any wrongdoing or personal advantage on the part of any of its members . . . But it is to say, in the factual situation of this case, that Council acted unreasonably and arbitrarily and without the degree of fairness, openness, and impartiality required of a municipal government.

(Citations omitted)

[42] In coming to a determination of whether a by-law can be impugned on this ground, "the court should have regard to the presence or absence of certain evidentiary 'badges' or indicia of bad faith": Luxor Entertainment Corp. v. North York (City) (1996), 1996 CanLII 11766 (ON SC), 27 O.R. (3d) 259, [1996] O.J. No. 360 (Gen. Div.), at para. 101. The most common badges of bad faith include "questionable timing; decisions made under false pretenses; improper motives; lack of notice; the usual practices and procedures are set aside; the parties most affected are kept in the dark; or the law singles out one individual or property": Toronto Taxi Alliance Inc. v. Toronto (City), [2015] O.J. No. 396, 2015 ONSC 685 (S.C.J.), at para. 106. As the courts have frequently pointed out, any one [page752] of the evidentiary badges of bad faith might not on its own be sufficient to undermine the validity of a by-law, but "it is the cumulative effect of all of the badges, viewed collectively, which the court should take into account": Luxor, at para. 101.

[43] Counsel for Clublink submits that the strongest indicator of bad faith is that the CHL By-law is purportedly applicable to all cultural heritage landscapes in the Town, but its application has been aimed at Glen Abbey alone. The Town's cultural heritage official and affiant, Susan Schappert, confirmed in her cross-examination that Clublink, and Clublink alone, has been required to adhere to a Conservation Plan, despite many properties falling within the Town's other cultural heritage districts. The press release issued by the Town upon passage of the CHL By-law stated expressly that Town council was concerned to "conserve the cultural heritage value and attributes of the Glen Abbey Golf Course". This focus, in turn, reflected the staff report on which the CHL By-law was based that was specific to the Glen Abbey property. Indeed, the CHL By-law, which mandates the production of a conservation plan for all heritage properties, was only enacted after the Town's development of the Conservation Plan for Glen Abbey was already underway.

[44] In fact, despite the supposedly general requirement in the CHL By-law that conservation plans be prepared within three months of its passing, the Town has neither produced plans for other affected properties nor notified the owners thereof of the CHL By-law's requirement that they do so. Moreover, the timing of the CHL By-law and other Impugned By-laws is suspiciously coincidental with Clublink's application under s. 34 of the OHA to demolish the Golf Course in preparation for its redevelopment (i.e., the subject of my previous judgment between these parties).

[45] The Conservation Plan also seeks to reinforce the Town's insistence that Clublink proceed via s. 33 rather than s. 34 of the OHA for any given alteration. Section 33 gives the Town the final say over Clublink's application without any true right of appeal, while s. 34 provides a right of appeal to the Land Planning Appeal Tribunal. The Conservation Plan's failure to reference s. 34 is an error, but it nevertheless may not directly contradict the OHA so as to on its own render the Plan ultra vires; as I explained in my previous judgment, whether ss. 33 or s. 34 apply may depend on variables such as whether the subject of the application is a "structure". On the other hand, the complete omission of s. 34 is certainly a glaring and seemingly strategic one. It therefore may reflect on the good faith of the Town in imposing the Conservation Plan on Clublink. [page753]

[46] Clublink points out that with the passage of the CHL By-law, all alterations or demolitions of designated properties must be approved by the Town if the alteration will affect its cultural heritage. This includes Glen Abbey, which has been designated under Part IV of the OHA, as well as properties within cultural heritage districts designated under Part V of the OHA. Clublink, as already indicated, complains that it alone has been made to face a Town approval process for alterations and demolitions, and points to this singular treatment of Glen Abbey as a sign of the Town's bias. In response, the Town states that Glen Abbey is not unique, and points to the numerous properties that operate under a similar approval process by virtue of being located in a heritage district designated under Part V.

[47] Despite the generally applicable language of the CHL By-law, no other conservation plans have been produced by other property owners, including those in Part V designated heritage districts. The Town has approved alterations of properties in those districts since the passage of the CHL By-law even though those owners have not adhered to any conservation plan in proposing their alterations. And that is despite the fact that under the CHL By-law it is the conservation plans that are supposed to set out for the owner those features that constitute the property's cultural heritage and that thereby set the parameters of permissible alterations. Ms. Schappert testified that up until the date of her cross-examination the Town has considered and approved six applications for alterations of properties in the Town's four heritage conservation districts, and that none of those approvals was based on any sight-specific conservation plan. That requirement has been imposed on the Glen Abbey property alone.

[48] Counsel for the Town points out that the cultural heritage designation of Glen Abbey pursuant to the OHA, and the implementation of that designation via the Impugned By-laws, did not change the permitted use of the property. The Town's zoning by-law already zoned Glen Abbey for use as a golf course, and the cultural heritage designation and Impugned By-laws merely reinforced this use. It is the Town's position that it did not have to enact the Designation By-law and implement it with the Impugned By-laws, but it had the power to do so and did so transparently.

[49] Clublink's counsel responds to this by pointing out that zoning works in a more generalized way than a by-law enacted pursuant to or in fulfillment of an OHA mandate. Many properties are zoned open space and could appropriately be used for [page754] a golf course. Cultural heritage considerations, on the other hand, fall into a special and more rarified category.

[50] Clublink contends that there is something odd about the need to resort to the OHA in order to preserve the very use for which the property was already zoned. What this suggests, according to Clublink's counsel, is that Glen Abbey's perpetual use as a golf course could not be guaranteed on land use and zoning principles alone, especially since the province's existing growth plan calls for increased growth and housing density. Zoning, in other words, changes with acceptable redevelopment proposals; cultural heritage designations, on the other hand, stay permanently in place and permit only those alterations that comply with a restrictive conservation plan.

[51] The Town's position that Glen Abbey was already zoned for golf course use, and that the Designation By-law and the CHL By-law and Conservation Plan implementing its terms really changed nothing, is seen by Clublink as reflecting the Town's lack of good faith. In reality, the Conservation Plan changes everything when it comes to redeveloping and otherwise making changes to Glen Abbey. As seen in the previous section, the Conservation Plan governs nearly every detail of the property. Moreover, while the existing zoning by-law may permit the property's use as a golf course, the Conservation Plan requires it. That difference is more than just a nuance; it is a game-changer in every sense of the term.

[52] It is Clublink's view that the Town's approach to it is entirely in disregard of its rights as owner, and that the Town has sought to appropriate for itself and the residents collectively the value that inheres in the Glen Abbey property. In making this argument, it points to, among other things, the public statements of residents who inveighed with Town council to do "everything in their power to stop" Clublink's redevelopment proposal. Clublink states that this public outcry prompted the Town to expedite its cultural heritage study and to refuse to even consider Clublink's own redevelopment proposal until forced to do so by an Ontario Municipal Board ("OMB") ruling.

[53] Moreover, Clublink submits that the Town is aware of the fact that it cannot use the OHA or the Impugned By-laws passed in implementing the OHA policy to require an owner to carry on a specific type of business. Ms. Schappert conceded this point in her cross-examination. And yet, in various Town-issued documents, Glen Abbey is referred to as a "Town landmark", as if its value must inure to the benefit not of its private owner but to the Town at large. In its Notice of Intent to Designate Glen Abbey issued August 24, 2017 ("NOID"), the Town specifically [page755] noted the attachment of other private property owners to the Golf Course and its ongoing existence as such (at p. 4):

Contextual Value

The Property is a landmark within the Town of Oakville. The quality of the golf course, and its connection to the Canadian Open, have been important in defining the character of this community . . . The course is also a central defining feature of its immediate neighbourhoods, which were created in response to the construction of the course.

[54] Clublink submits that the upshot of the Impugned By-laws in implementing the cultural heritage designation of Glen Abbey is to appropriate the value of the property to the surrounding residents and owners. In contrast to the concern shown for the neighbourhoods in the immediate vicinity of Glen Abbey, which the Town observes were built and attracted purchasers specifically because of the existence of the Golf Course, the Town has given no consideration whatsoever to the impact of its by-laws on Clublink as owner of Glen Abbey. In fact, in the Town Council report dated August 16, 2017, which was the basis for issuing the NOID, it is observed that "There are no known financial implications of this report at this time." A similar lack of concern for financial implications is evident with respect to the Town's enactment of the Conservation Plan. It is the Town's interest in preserving Glen Abbey's use as a championship golf course, and not Clublink's interest as property owner with financial concerns of its own, that forms the essence of the Conservation Plan.

[55] The courts have, of course, acknowledged that all town planning, including heritage designations, may entail the curtailment of property rights for some and the enhancement of property values for others: Canadian Pacific Railway Co. v. Vancouver (City), 2004 BCCA 192, [2004] B.C.J. No. 653, at para. 45, affd 2006 SCC 5, [2006] 1 S.C.R. 227, [2006] S.C.J. No. 5. It is axiomatic, however, that "the City [must have] considered the matter in terms of balancing the interests of individual property owners in [the designated heritage area] against the overall community interests": Cummings v. Vancouver (City), 2016 BCSC 1918, [2016] B.C.J. No. 2186, para. 202. No such balancing is evident in the CHL By-law or the Conservation Plan.

[56] In point of fact, the Town was certainly aware of the financial implications not only of the NOID, but of the CHL By-law and the Conservation Plan, when these were enacted. Clublink had already submitted its redevelopment proposal to the Town, and the OMB had already required that the Town at least consider that proposal.

[57] Moreover, the Town itself has in the past acknowledged -- indeed, exploited -- the fact that the Golf Course did not [page756] represent the most financially valuable use of the Glen Abbey property. In a 2007 decision by the OMB, the Town attempted to increase Clublink's property tax assessment by attributing to Clublink the notional value of a housing development on the Glen Abbey land. The Town based its position on a study by urban planner Ruth Victor showing that a housing development, and not a golf course, was the "highest and best use" for the Glen Abbey property.

[58] As the OMB put it in rejecting the Town's sought-for increased assessment, "[t]here is certainly an inconsistency that warrants some form of explanation": Clublink Corp. ULC v. Oakville (Town), [2017] O.M.B.D. No. 468, 2017 CarswellOnt 7477, at para. 71. The OMB then went on to opine on the Town's motives in pursuing this gambit in light of the fact that the Town would likely not authorize the "highest and best use" on which it relied (paras. 71-72):

[Counsel for the Town] offers the view that although the Victor Report is an independent planning opinion, it is one prepared for establishing what could potentially be the "highest and best use" for the purpose of assessment. As he explained, it is not an opinion prepared to establish the merits of such a redevelopment scheme (and those merits are not being tested here in any event) . . .

The Board concludes that the Victor Report offers evidence of little more than an attempt by the Town, perhaps in a fit of unwise avarice, to maximize property tax revenue from the Glen Abbey site[.]

[59] Without meaning to overstate the point, "avarice" is a less than charitable characterization of a public authority's approach to a rate payer and rights holder. It is not just a descriptive term, it is a judgmental one. That is, it speaks of more than a quest for financial advantage; it speaks of an improper or unethical financial advantage. Avarice -- a word one does not often hears outside of a religious context -- is identified as one of the seven deadly sins of biblical commentary, or the "capital vices" as St. Thomas Aquinas referred to them: Thomas Aquinas, The Summa Theologica (2nd ed., 1920), Fathers of the English Dominican Province, trans., Q 84; I-II, 84, 3. Although the OMB ultimately decided to play it down in the context of a property tax appeal, it is not a proper approach for the Town to take in exercising its statutory powers and not one that commends itself to this court.

[60] The upshot is that the Town is keenly aware of the development value locked up in alternative uses for the Glen Abbey property when it suits its need to raise tax revenue. At the same time, it is blithely unaware of the value locked up in the very same property when it suits its need to suppress all development beyond its current use. The OMB was of the view that the first of these contradictory stances was unwise and greedy, but not [page757] a signal of bad faith. I am of the view that the second contradictory stance is one step over the line. It can signal nothing but bad faith.

[61] It is troubling enough for a municipality to ignore the use of a property in favour of its unattainable financial potential; it is twice as problematic for the same municipality to then ignore the financial potential of a property in favour of freezing its current use. Counsel for Clublink submits that this conduct on the part of the Town amounts to an expropriation of the Glen Abbey property. That is, of course, a far-reaching allegation, since there was no explicit taking of the property and Clublink is still left with its title and previous level of enjoyment of the property.

[62] That said, the Supreme Court of Canada has recently confirmed that an expropriation can take place in disguised form where "a municipal government limits the enjoyment of the attributes of the right of ownership of property to such a degree that the person entitled to enjoy those attributes is de facto expropriated from them": Lorraine (Ville), supra, at para. 27. Indeed, the OMB has long been of the view that land use "designations cannot be used to create public parks or publicly accessible open spaces. This requires that the lands be legally acquired by consent or through due process, and that fair compensation be paid": Spellman v. Essex (Town), 2002 CarswellOnt 5112, at para. 107. What goes for zoning and planning designations also goes for heritage designations. The wholesale transfer of property value from owner to community cannot be accomplished cloaked in the disguise of an otherwise valid municipal power.

[63] Of course, municipalities generally enjoy considerable discretion in making planning and heritage decisions. The leeway that affords the Town, however, is not unlimited. "'Discretion' necessarily implies good faith in discharging public duty": Roncarelli v. Duplessis, 1959 CanLII 50 (SCC), [1959] S.C.R. 121, [1959] S.C.J. No. 1, at p. 140 S.C.R. Accordingly, "a municipality may not . . . be held liable for the exercise of its regulatory power if it acts in good faith or if the exercise of this power cannot be characterized as irrational": Entreprises Sibeca Inc. v. Frelighsburg (Municipality), 2004 SCC 61, [2004] 3 S.C.R. 304, [2004] S.C.J. No. 57, at para. 23. But when it acts in the absence of good faith, and knowingly strips the value out of a property for the benefit of other municipal residents who purchased in nearby neighbourhoods, the scope of legitimate discretion has been exceeded.

[64] In his affidavit supporting this application, the senior vice-president of Clublink, Robert Visentin, deposed that the continued running of the Golf Course costs in the range of $2 million per year. There is nothing in the record to cast doubt on this [page758] figure. Counsel for the Town's response to this is to indicate that this simply reflects the cost of running the golf course; neither the CHL By-law, nor the Conservation Plan, nor any of the other Impugned By-laws serve to increase the expense.

[65] While the Town's response is in a theoretical sense correct, it suffers from the same blind spot from which much economic analysis suffers: it neglects transaction costs: see Douglas Allen, "Transaction Costs", in: Encyclopedia of Law and Economics, vol. I: The History and Methodology of Law and Economics, Bouckaert, Boudewijn and De Geest, Gerrit, eds. (Chelthenham: Edward Elgar Press, 2000), at p. 893. Clublink complains that the Conservation Plan is excessively detailed in its regulation of the ongoing management of the Glen Abbey property. The thorough coverage of the Conservation Plan necessarily adds time, labour and expense to much of the business of Clublink in managing its property.

[66] A brief review of the Conservation Plan reveals that it does not shy away from the bureaucratization of minutia. It requires an application to staff for a proposed change in the contours of a single bunker or mound, changes in the shape or length of a green, etc. It requires an application to council for a proposed addition or elimination of a cart path, an internal road, etc. It requires an application to Town staff for the removal of up to four trees and an application to Town council for the removal of over four trees. The Impugned By-laws even include the new By-law 2018-43, entitled "A by-law to amend the Private Tree Protection By-law 2017-038". That regulatory innovation, when applied to this over 200-acre forested property, increases arboreal control to the point where changing a single cedar or pine may in some circumstances be subject to the Town's Heritage Advisory Committee.

[67] The Town's response also misses the point of Mr. Visentin's evidence. Preserving Glen Abbey as an operating Golf Course -- especially one operating at championship golf standards as required by the Conservation Plan -- is a money-losing proposition for the property owner. It is entirely geared toward preventing what the Town knows to be -- indeed, what the Town has itself previously argued to be -- Glen Abbey's highest and best use. And while a property owner does not necessarily have a right to put its property to the highest and best use, and the Town has a right to invoke other policy objectives in the face of such a proposed use, Clublink has a right to expect some value in its land be preserved and taken into account. Otherwise, the running of Glen Abbey becomes an interminable expense for Clublink, [page759] effectively replacing tax revenue with private funding in running a public amenity.

[68] I will conclude with a comment endorsed by Rosenberg J.A. on behalf of a unanimous Court of Appeal in Pedwell v. Pelham (Town), 2003 CanLII 7488 (ON CA), [2003] O.J. No. 1774, 174 O.A.C. 147 (C.A.), at para. 73: "[City officials'] own subjective assessment of the righteous character of their conduct does not resolve the problems of whether they acted in good faith in so doing". Here, there is no suggestion that the Town enacted the Impugned By-laws out of any motive other than what they thought was the best interest of their constituents at large. Nevertheless, the Town enacted a Conservation Plan and other Impugned By-laws that improperly disregard the interest of Clublink in favour of the interest of other residents. It stripped value from Glen Abbey and effectively transferred it to those other residents.

[69] Counsel for Clublink submits that the CHL By-law and Conservation Plan appear to be the only ones of their kind in Ontario and are the only ones anywhere that target a golf course as an ongoing business. This comes as little surprise.

[70] Counsel for the Town states that the CHL By-law tracks the provincial policy as set out by the Ministry of Culture in its Heritage Property Evaluation, supra. That policy guide, at p. 55, expressly references "parks, gardens, battlefields . . . golf courses, farmscapes" as illustrations of properties that might qualify as "cultural heritage landscapes".

[71] As a policy guide, the Ministry of Culture publication is, of course, recommendatory only, and does not have the force of law. Moreover, most municipalities would be cognizant that while a golf course may have heritage value, there is a difference in the way the policy is to be implemented when dealing with a privately as opposed to a publicly owned golf course. As Ms. Schippert has confirmed for the record, there is nothing in the OHA or otherwise in provincial legislation and policy that empowers a municipality to require a private business -- whether it is a cemetery, a farm or a golf course -- to keep running as a business. The Conservation Plan for Glen Abbey stands alone in that regard.

[72] For the Impugned By-laws to ignore the economic impact on the property owner, and to effectively require a property owner not only to maintain its property but to stay in business, all for the benefit of other residents of the Town, is to reflect bad faith decision-making. And the community-spirited intentions of Town officials and council in enacting these measures provide no defence. [page760]

[73] The Supreme Court of Canada has observed that the legislature has "recognized that the preservation of Ontario's heritage should be accomplished at the cost of the community at large, not at the cost of the individual property owner, and certainly not in total disregard of the property owner's rights": St. Peter's Evangelical Lutheran Church (Ottawa) v. Ottawa (City), 1982 CanLII 60 (SCC), [1982] 2 S.C.R. 616, [1982] S.C.J. No. 90, at p. 624 S.C.R. To knowingly act otherwise is an expression of bad faith.

IV. Vagueness

[74] Properly drafted statutes "limit enforcement discretion by introducing boundaries, and they also sufficiently delineate an area of risk to allow for substantive notice to citizens": R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, [1992] S.C.J. No. 67, at p. 639 S.C.R. A by-law can be void for vagueness even if the overall purpose of it is clear. While any analysis of the terms of a by-law must recognize that an enacting city council requires some flexibility, the meaning must be possible for affected residents to discern. Thus [Wainfleet Wind Energy Inc. v. Wainfleet (Township) (2013), 115 O.R. (3d) 64, [2013] O.J. No. 1744, 2013 ONSC 2194 (S.C.J.) at para. 31],

A by-law is invalid for vagueness and uncertainty if: (a) it is not sufficiently intelligible to provide an adequate basis for legal debate and reasoned analysis; (b) it fails to sufficiently delineate any area of risk; and, (c) it offers "no grasp" for courts to perform their interpretive function. This standard is exacting, and the onus is on the applicant to establish that the by-law should be declared invalid.

[75] One example of a by-law that meets this test of vagueness is where it uses terminology that is not susceptible to an agreed-upon definition: see Hamilton Independent Variety and Confectionary Stores Inc. v. Hamilton (City), 1983 CanLII 3114 (ON CA), [1983] O.J. No. 3, 143 D.L.R. (3d) 498 (C.A.). Another is where the terminology in the by-law is too general and cannot readily be applied to specific cases: see Niagara Falls (City) v. Jorgensen, 1995 CanLII 7021 (ON CA), [1995] O.J. No. 2275, 84 O.A.C. 149 (C.A.). Yet another is where one person's conduct results in a violation of the by-law and another person's similar conduct does not: see 2312460 Ontario Ltd. v. Toronto (City) (2013), 115 O.R. (3d) 206, [2013] O.J. No. 872, 2013 ONSC 1279 (S.C.J.).

[76] The CHL By-law imposes the requirement of a conservation plan on all properties that fall within a "cultural heritage landscape in or on a protected heritage property". Likewise, s. 2.1.4 of the CHL By-law prohibits alterations of a cultural heritage landscape or substantive changes in a protected heritage [page761] property except in accordance with the specific conservation plan for the property.

[77] There are four cultural heritage districts proclaimed by the Town. Each district is itself a cultural heritage landscape, and the language of the CHL By-law is sufficiently broad that it could capture any given property within one of these districts. It is entirely unclear from the terms of the CHL By-law which properties require a conservation plan and what the contents of the plan must be.

[78] In fact, Ms. Schappert, the very municipal officer in charge of enforcing the Town's cultural heritage policy, was unable in cross-examination to identify which properties were caught by the requirement that they adhere to a conservation plan. I hasten to say that this was not a failing of Ms. Schappert's; the CHL By-law simply gives no guidance as to how to distinguish a property that is subject to its terms from any other. In keeping with that confusion, no conservation plans have been produced for any property within the Town except for Glen Abbey.

[79] Since the Glen Abbey Conservation Plan is specifically geared toward the operation of a championship golf course, and no other property is equivalent to Glen Abbey, there is no way for other property owners to take from this one precedent whether to produce a plan or to determine if the Town will produce one for them. Furthermore, without a conservation plan in place, a property owner subject to the CHL By-law does not have any way of assessing a proposed alteration to their property.

[80] For that matter, Town officials are every bit as much in the dark as are property owners. Despite this vagueness that inheres to the Impugned By-laws, Ms. Schappert has confirmed that alterations for properties with cultural heritage landscapes (other than Glen Abbey) have been approved by the Town without the need for any conservation plans at all.

[81] Similarly, the amendments to the Property Standards By-law, which are included in the package of Impugned By-laws, require an owner to "maintain the elements and features of a protected heritage property that hold up, support or protect the heritage value or interest and heritage attributes". Again, an owner cannot determine from the face of this by-law what the particular legal requirements are, and a Town official cannot determine what it is that needs to be enforced.

[82] Property standards that are vague run the risk of transforming applicable standards to subjective value judgments. As the Supreme Court has observed, a law, including a municipal by-law, may not be [at para. 41] "so pervasively vague that it [page762] permits a 'standardless sweep' allowing law enforcement officials to pursue their personal predilections": Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (SCC), [1990] 1 S.C.R. 1123, [1990] S.C.J. No. 52.

[83] The argument about the vagueness of the Impugned By-laws is intertwined with the argument about bad faith. These municipal instruments appear to suffer from an attempt to bury specifically targeted policies within general language. That is, the CHL By-law, the amendments to the Property Standards By-law, and the other Impugned By-laws are unintelligible because they attempt to speak in general terms about a policy that is arguably specific to Glen Abbey. This confusion explains why the property owner does not have comprehensible notice of the contents of the Impugned By-laws and Town council and staff do not have intelligible limits to their enforcement discretion.

[84] "The 'doctrine of vagueness' is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion.": Nova Scotia Pharmaceutical, at pp. 626-27 S.C.R. The Impugned By-laws are vague, and therefore undermine the rule of law. They cannot survive the present challenge.

V. Disposition

[85] The Impugned By-laws, including the Conservation Plan for the Glen Abbey property, are hereby quashed.

[86] The parties are encouraged to attempt to resolve costs among themselves.

[87] If costs cannot be agreed upon, counsel may address them in written submissions. I would ask that counsel for Clublink provide me with brief submissions and a costs outline or bill of costs within two weeks of the date hereof, and that counsel for the Town provide me with brief submissions within two weeks of receiving Clublink's submissions. The costs submissions may be e-mailed directly to my assistant.

Application allowed.

End of Document