COURT FILE NO.: CV-21-604030
DATE: 2022/09/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
UPPER CANADA LAND TITLES AND PATENT RESEARCH INITIATIVE
Applicant
– and –
REGIONAL MUNICIPALITY OF NIAGARA A.K.A. NIAGARA REGION, ATTORNEY GENERAL OF PROVINCE OF ONTARIO, and THE ATTORNEY GENERAL OF CANADA
Respondents
Rory Barnable and Zachary Cooper, for the Applicant
Brian Duxbury and Joshua Perell, for the Respondent Regional Municipality of Niagara
HEARD: June 16, 2022
REASONS FOR JUDGMENT
THE HONOURABLE mR. JUSTICE r. J. NIGHTINGALE
[1] The Applicant seeks to quash the Respondent Regional Municipality of Niagara’s (“the Region”) Woodland Conservation Bylaw No. 2020-79 (“the Bylaw”) for illegality or declare it without legal effect as it concerns property located at 595 Kemp Rd., Grimsby (“the Property”) owned by Anthony Kaluzny.
[2] The Applicant further asserts that the Bylaw is invalid in whole or in part for being:
i. ultra vires its enabling legislation, The Municipal Act, 2001, S.O. 2001;
ii. in conflict with and frustrating a legislative instrument being a Crown Patent of the Property to the original transferee from the Crown in 1818;
iii. in conflict with and frustrating to section 58 of the Public Lands Act, R.S.O.1990, c.P.43, Section 15 of the Conveyancing and Law of Property Act R.S.O.1990, c.C.34 and section 3 of the Real Property Limitations Act, R.S.O.1990, c.L.15
iv. too vague.
[3] The Respondent Region disputes all of those allegations and submits that the application should be dismissed.
[4] The Respondents Attorney General of the Province of Ontario and the Attorney General of Canada were initially served with this application. Notices of discontinuance against them were provided as no relief was being claimed by the Applicant regarding the constitutional validity of the applicable legislation.
Factual Background
[5] Anthony Kaluzny, the president and a director of the Applicant, acquired the Property being Lot 29 Concession 5, Part 59 of the Township of North Grimsby in 1980 and is still the registered owner.
[6] The Applicant is a not-for-profit organization incorporated on April 1, 2019. Its objects are noted below.
[7] Mr. Kaluzny’s deed to the Property states: “...to have and to hold on to the said Grantees their heirs and assigns to and for their sole and only use forever as joint tenants and not as tenants in common subject nevertheless to the reservations, limitations, provisos, and conditions contained in the original grant thereof from the Crown.” The Property’s parcel register states “Subject to the reservations in Crown Grant”.
[8] The original Crown Patent of the Property dated August 12, 1818 granted the land to Thomas Fitzgerald:
“…saving and reserving to us, our heirs and successors all White Pine Trees that shall, or may now or hereafter grow or be growing, on any part of the said parcel or tract of land hereby granted as aforesaid.”
[9] By section 53(3) of the Public Lands Act, the Crown relinquished all reservations of all timber and trees or any kind of tree in lands granted by letters patent dated on or before April 1, 1869. That includes the property of Mr. Kaluzney.
[10] Section 135 of the Municipal Act passed in 2006 enabled the Respondent Region, an upper tier municipality as defined in section 1 of the Municipal Act, to pass bylaws concerning trees and impose conditions. These sections state:
135(2) Without limiting sections 9, 10 and 11, an upper tier municipality may prohibit or regulate the destruction or injuring of trees and woodlands designated by the bylaw.
(3) In this section, “Woodlands” means lands as defined in the Forestry Act and are one hectare or more in area.
(5) In passing the bylaw regulating or prohibiting the injury or destruction of trees in woodlands, a municipality shall have regard to good forestry practices as defined in the Forestry Act, 2001.
(7) Without limiting sections 9, 10 and 11, a municipality may in a bylaw passed under this section,
a) require that a permit be obtained to injure or destroy trees; and
b) impose conditions to a permit including conditions relating to the manner in which destruction occurs and the qualifications of persons authorized to injure or destroy trees.
[11] The Region had passed its first bylaw under powers conferred under section 135 in 2008 which was then administered by the Niagara Peninsula Conservation Authority (“NPCA”) pursuant to a service agreement with the Region. In 2018, staffing changes at the NPCA required the administration and enforcement of that 2008 bylaw be transferred back to the Region.
[12] The Region accordingly passed the Bylaw on October 22, 2020 which came into force on January 31, 2021 and specifically states that the Bylaw was passed pursuant to the powers granted the Region under section 135 of the Municipal Act.
[13] The Region followed the normal course of the legislative procedure set out in the Region’s procedural bylaw in passing the Bylaw. The Applicant is not submitting that the Bylaw is unreasonable or passed in bad faith or for an improper motive.
[14] The relevant parts of the Bylaw attached as Schedule A to these Reasons state:
- DEFINITIONS
In this Bylaw:
1.12 “Heritage Tree” means a tree identified and designated by the Council of an Area Municipality as having heritage significance;…
1.16 “Owner” means any person having control over any portion of land that contains Woodland or Woodlands and specifically includes any Person having any right, title, interest or equity in the land and any Person lawfully permitted on the land;…
1.27 “Significant Community Tree” means a Tree identified and designated by the Council of an Area Municipality as having community significance;….
1.30 “Tree” or “Trees” means any living species of woody perennial plant, including its root system, which has reached or can reach a height of at least 4.5 metres at physiological maturity;
- APPLICATION OF THE BYLAW
This Bylaw shall apply to:
2.1 all woodlands having an area of one (1) hectare or more;
2.2 all woodlands having an area of less than one (1) hectare, upon delegation of such authority by an Area Municipality to the Region; and
2.3 Heritage Trees and Significant Community Trees identified and designated by the Council of an Area Municipality, upon delegation of such authority by an Area Municipality to the Region.
- GENERAL PROHIBITIONS
3.1 No Person through their own actions or through any Persons shall injure or destroy any tree located in the Woodlands:
3.1.a Unless exempted by Section 4 of this Bylaw; or
3.1.b Unless in possession of a valid Permit issued under this Bylaw and in accordance with its terms or conditions.
3.2 No Person through their own actions or through any other person shall:
3.2.a Contravene the terms or conditions of the permit issued on this Bylaw;
3.2.b Fail to comply with an order issued under this Bylaw; or
3.2.c Remove or deface any order that has been posted pursuant to this Bylaw.
3.3 No Person through their own actions or through any other Person shall Injure or Destroy any tree that has been designated by the Council of an Area Municipality as a Heritage Tree or a Significant Community Tree, provided that the authority to regulate such Trees has been delegated to the Region by the Area Municipality.
3.4 An Owner is deemed to have knowledge of, to have permitted, and to be liable for actions that violate this Bylaw that occur on the portion of land over which the Owner has control.
[15] The Bylaw purports to prohibit or regulate the destruction or injuring of trees on certain lands within the Region, being any lands constituting a “Woodland”, as that term is defined in Ontario’s Forestry Act R.S.O. 1990, C., F.26 or any tree designated a “Heritage Tree” or a “Significant Community Tree” as those terms are defined in the Bylaw.
[16] The Bylaw also imposes conditions concerning permit issuance should an owner wish to take actions that may be deemed by the Region to damage or injure trees in a Woodland. It also sets terms and restrictions on persons generally in relation to trees in Woodlands and imposes qualifications of persons who the Bylaw states are authorized to injure or destroy trees.
[17] The Bylaw does not include the Applicant’s Property in its stated exemptions under section 4 of the Bylaw or any properties granted by Crown Patent dated before April 1, 1869.
ANALYSIS
Does the Applicant have standing to proceed with this application?
[18] After the conclusion of the hearing of this application, I requested that counsel provide me with their position and submissions of the issue of standing of the Applicant to commence and proceed with this application as I noted that it was not addressed in the parties’ material or on the hearing.
[19] The following evidence was provided in Mr. Kaluzny’s initial affidavit in the application.
[20] Anthony Richard Kaluzny was one of three directors and incorporators of the Applicant. The other two Erica Ann Furney and Joan Marie Olech have different addresses for service than Anthony Richard Kaluzny.
[21] The special provisions of the Applicant corporation are:
“The Corporation shall be carried on without the purpose of gain for its members, and any profits or other accretions to the corporation shall be used in promoting its objects.”
[22] The objects for which the Applicant corporation is incorporated are:
“Our purpose is to research and understand the root title of properties, their origin and the intent of the Sovereign as it pertains to each property of our members.
To establish what rights so given and granted exists and how those rights are to be respected concurrently.
To research on behalf of our members different departments and levels of government their position on the rights so given and granted and to understand if and why they should or should not be respected.
To understand how our head of state, our Constitution is being respected as it pertains to property.”
[23] Both counsel in those submissions agreed that the Applicant has the standing required to bring this application based on section 273(1) of the Municipal Act, 2001, S.O. 2001, S.25 which states that upon the application of any person, the Superior Court of Justice may quash a bylaw of a municipality in whole or in part for illegality.
[24] In Galganov v. Russell (Township), 2012 ONCA 409, the Court of Appeal noted how the wording of section 273 (1) previously had limited use of the section to “a resident of the municipality”, but recent legislative amendments had employed the “broader more inclusive phrase” of “any person” to reflect the general trend of broadening access to justice in the courts.
[25] Because of the agreement of the parties on the issue of standing of the Applicant, I need not and have not considered the additional affidavit material filed by counsel for the Applicant.
Is the Bylaw invalid for being ultra vires the Municipal Act as it applies to the Property?
[26] The Applicant states that the bylaw should be quashed under section 273 of the Municipal Act in whole or in part for illegality as it is ultra vires the Region municipality’s authority. The Applicant states that the Bylaw is also void because the Region lacks the authority to make and apply the Bylaw in current form specifically to the Property. The Bylaw is also void because it is contrary to certain instruments of legislative nature.
[27] The Applicant in challenging the Bylaw’s validity bears the evidentiary burden of proving that it is ultra vires and the issue is whether the Region had the authority to pass the Bylaw. Brantford (City) v. Konokov, 2004 CarswellOnt 111 at paras. 7 and 9.
[28] The court reviews the legality of the municipal bylaw on the standard of correctness. However, the courts are to take a broad and differential approach to municipal decision-making. The shift in the legislative drafting from the practice of granting municipality specific powers in particular subject areas to instead conferring them broad authority over generally defined matters reflects the true nature of modern municipalities which require greater flexibility in fulfilling the statutory purposes. United Taxi Drivers Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 SCR 485; Suncor Energy Products Inc. v. Plimpton-Wyoming (Town), 2014 ONSC 2934 at para.42
[29] Municipalities may exercise only those powers expressly conferred by statute, those powers necessarily or fairly implied by the express power in the statute, and those indispensable powers essential and not merely convenient to the effectuation of the purposes of the Corporation. The “purposes of the corporation” or “municipal purposes” are determined by reference to not only those that are expressly stated but that are compatible with the purpose and objects of the enabling statute. Barring a clear demonstration that a municipal decision was beyond its powers, courts should not so hold.
[30] In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the benevolent construction and confer the powers by reasonable implication. Shell Canada Products Limited v. Vancouver (City), [1994] 1 SCR 233 (S.C.C.) at paras 29 and 63; Brantford (City) v. Konakov, at paras. 10-11; Croplife Canada and the City of Toronto, 2005 CarswellOnt 187(OCA) at para.18.
[31] A broad and purposive approach to the interpretation of municipal powers is now being embraced and the Municipal Act, 2001 now grants municipalities broad authority over generally defined matters. This shift in legislative drafting reflects the true nature of modern municipalities which require greater flexibility in fulfilling their statutory purposes. Croplife Canada and the City of Toronto at para. 20 referring to United Taxi Drivers Fellowship of Southern Alberta.
[32] The Applicant states that as all Crown reservations concerning trees and lands granted on or before April 1, 1869 were voided by section 58 of the Public Lands Act, all Crown reservations of any trees are no more and the Crown has no further ownership in the Property’s trees which extends to any subordinate of the Crown including the Region.
[33] The Applicant’s position is that as the Municipal Act contains no express authority to the Region to create a reservation, covenant or other servitude in the Property, the Bylaw restricts or imposes a further restriction to the Property which contradicts the reservation that the Crown previously held and thereafter ceded. The Crown cannot make a new entry or claim against Mr. Kaluzny over trees on the Property nor can the Region.
[34] I disagree with that position for the following reasons.
[35] Bylaws are typically construed broadly although restrictions for removals of common law rights of inhabitants are strictly construed and authorizing language for the bylaw must be clear and distinct.
[36] The 2006 amendment to section 135 of the Municipal Act conferred on upper tier municipalities in Ontario, including the Region, broad powers to prohibit or regulate the destruction or injuring of trees in woodlands designated in the bylaw. That the section contains no definition of “owner” and makes no reference to “private lands” while the Bylaw does define owner and obviously refers to owners of all woodlands, i.e., private lands, within the Region is of no significance.
[37] That section also confirms that “woodlands” are as defined in the Forestry Act that are one hectare or more in area. The Bylaw essentially adopted that definition.
[38] As noted by Applicant’s counsel, the Municipal Act contains 115 separate references to the word “owner” but does not specifically define it. There is no question in this case that Mr. Kaluzny is the registered title owner of the property in fee simple and obviously is an owner as defined by the Bylaw and in the legal sense of the word as contemplated by the Municipal Act.
[39] The Applicant is alleging that the Bylaw impacts on Mr. Kaluzny’s property rights of ownership in fee simple and his potential uses of the Property.
[40] There is a long-recognized distinction between the regulation of the use of land and restrictions or other acts of government that impact title or ownership interest in property. Pongratz v. Zubyk, 1954 Carswell ONT 278 at para. 7; Soo Mill and Lumber Co. v. Sault Ste. Marie (City), 1974 Carswell ONT 240 at paras. 5 and 9.
[41] I agree with the Region that the fact that the potential restrictions on destruction or injuring of trees on the Property is impacted by the Bylaw is not a basis for a finding of illegality of the Bylaw.
[42] Section 11 of the Municipal Act empowers the Region in general terms to pass bylaws with respect to the economic, social and environmental well-being of the municipality. In addition, the Region, pursuant to section 270(1)(7) of the Municipal Act, is required to adopt and maintain a policy regarding the manner in which the municipality will protect and enhance the tree canopy and natural vegetation within the municipality.
[43] The Bylaw in this case is specifically authorized and created by section 135 of the Municipal Act to prohibit or regulate the destruction or injuring to trees in woodlands designated in the Bylaw unless a permit is first obtained from the Region lest the owner risk enforcement measures including charges under the Bylaw.
[44] The Bylaw’s regulatory scheme to protect trees and woodlands within the Region does not create a reservation, easement, covenant on land unto itself or deletes previously existing and long-held rights of use and alienation on timber or trees on the Property.
[45] The Bylaw is not in substance a zoning bylaw under the Planning Act as suggested by the Applicant but rather a regulatory bylaw under the Municipal Act. It is concerned with the regulation of the particular activity regarding injuring or destruction of trees thereon and with providing standards in the public interest and does not restrict the use of the lands. Neighbourhoods of Winfield’s Limited Partnership v. Death, 2008 O.J., No.3298 (ONSC) at paras. 73-74.
[46] The Region had the authority to pass the Bylaw pursuant to section 135 of the Municipal Act which Bylaw is intra vires the legislative power conferred or delegated to the Region by the Province. The Applicant has not met its evidentiary burden to establish the Bylaw is ultra vires the Region’s authority to pass it. Rodriguez Holding Corp. v. Vaughn (City), 2006 CarswellOnt 5029 at para. 42; Mariner Real Estate Ltd. v. Nova Scotia (Attorney General), [1999] N.S.J. No. 283 (N.S.C.A.) at para. 42.
Is the Bylaw void and without effect being in conflict with the Crown Patent?
[47] Section 14(1) of the Municipal Act provides a bylaw is without effect to the extent of any conflict with:
(a) a provincial or federal Act or a regulation made under such an Act; or
(b) an instrument of a legislative nature, including an order, licence or approval, made or issued under a provincial or federal Act or regulation.
[48] Section 14(2) provides that without restricting the generality of subsection (1), there is a conflict between a bylaw of the municipality and an Act, regulation or instrument described in that subsection if the bylaw frustrates the purpose of the Act, regulation or instrument.
[49] The Applicant states that the Bylaw is invalid as it expressly contradicts another provincial law or instrument, being the provisions of the original grant of the Property by Crown Patent or that it frustrates the purpose of that law. It states that the Bylaw impinges the fee simple interest of Mr. Kaluzny in the Property provided by that Crown Patent including because he no longer has an ability to convey an interest in trees in fee simple as before the Bylaw without reservation.
[50] The Applicant states that given the Crown’s relinquishing its reservation in White Pine trees in the Property under the Public Lands Act, Mr. Kaluzny is entitled under the original Crown Patent to all of the trees in the Property and to exercise acts of ownership in fee simple. That includes the right to cut and take the trees as a necessary incident of his property rights in the trees.
[51] The Applicant submits that the Bylaw cannot impede or impair the prerogative of the Crown Patent as the Region has been given no such authority under its authorizing legislation being section 135 of the Municipal Act.
[52] The Region states that the Applicant in effect is claiming that the Crown Patent to the Property supersedes the powers delegated to the provinces under section 92 of the Constitution Act, 1867 and/or the powers delegated by the provinces to municipalities through provincial statutes including statues that authorize municipalities to regulate land use.
[53] The Applicant also relies on the Ontario Court of Appeal decision of Chippewas of Sarnia Band v. Canada Attorney General, 2000 CanLII 16991 (ON CA), 2000 O.J. No. 4804 at para. 248 where the court confirmed that the Crown Patent to the land was issued as an exercise of Crown prerogative and was a routine governmental act. The Applicant states that the Region’s Bylaw by virtue of its purportedly broad scope conflicts with an exercise of the Crown prerogative of granting the Crown Patent, an instrument of a legislative nature. Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2 SCR 295, 2009 SCC 31 at paras. 58-66.
[54] The Court in Desmarais v. Fort Erie (Town), 2016 ONSC 1750 was dealing with a municipality’s property standards bylaw. At para. 70, the Court confirmed that pursuant to the Constitution Act, 1867, sections 92(13) and 92(16), the province can control private property and there was nothing in the Crown Patent that suggests the government cannot legislate that municipalities have the ability to regulate private property or that the Crown Patent had paramountcy over that regulatory power.
[55] Maddelena J in Desmarais relied on the Ontario Court of Appeal decision in R. v. Mackey, 2012 O.J. No. 4718 which held that the authority of the province to control activities on private land is derived from sections 92(13) and 92(16) of the BNA Act and that legislative authority to control the use of land generally undoubtedly belongs to the province under those sections. Furthermore, that court held that there was nothing in the language of the Crown Patent itself or elsewhere in the evidentiary record for support of the contention that the Crown Patent and the rights conferred under it displaced otherwise validly enacted provincial legislation regulating land use.
[56] In Port Hope (Municipality) v. Elgasuani, 2016 ONCS 282, 2016 ONSC 282 (Div. Ct.) at para. 14, the Court also held that the Crown Patent does not limit or reduce the provincial government’s power to regulate land use. It rejected the property owners’ submission that the original Crown grant limited or reduced the provincial government’s powers to regulate land use under its property standards bylaw as the municipality never owned the land and had no right to control what the owner did with his property.
[57] The Court in Port Hope also confirmed that under the British North America Act, 1867 and all subsequent amendments thereto, the provinces do have exclusive jurisdiction to legislate in relation to property and civil rights. Municipalities have been delegated authority by the Province of Ontario to limit property rights through the Act and the Planning Act.
[58] In my view, although those cases involved the province’s power to regulate land use, the reasoning can also be applied to the regulatory Bylaw in this case.
[59] Not all government actions can be described as legislative instruments.
[60] The conveyance of the land by its original Crown Patent was a routine administrative act of the Crown as a means of conveying an ownership interest in land and was not an Act or legislative instrument which created property rights of any kind that superseded the delegation of government power to the province and hence to the municipalities under the Constitution Act, 1867.
[61] The Applicant has not established that the issuance of the Crown Patent in this case is a statute, regulation, rule of a regulatory body, or government policy, internal directive or rule emanating from a governmental entity that is not administrative in nature unlike the transit authorities’ advertising policies in issue in Greater Vancouver at paras. 55-58.
[62] In particular, the Applicant’s evidence does not establish that the granting of a Crown Patent to the original owner of the Property was a sufficiently accessible and precise government policy authorized by statute that sets out a norm or standard of general application which established the rights and obligations of the individuals to whom they apply.
[63] Accordingly, the Applicant has not met its evidentiary burden of proving that the Bylaw should be quashed under section 14 of the Municipal Act because it conflicts with a provincial or federal Act or instrument of a legislative nature.
Is the Bylaw void because it conflicts with the provisions of the [Public Lands Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-p43/latest/rso-1990-c-p43.html), [Conveyancing and Law of Property Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c34/latest/rso-1990-c-c34.html) or [Real Property Limitations Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l15/latest/rso-1990-c-l15.html)?
[64] The law is clear that all bylaws are subject to the general law of the realm and are subordinate to it and that any bylaws which are repugnant to or inconsistent with general provincial legislation are void and of no effect, or else superseded to the extent that the legislature has acted. The Law of Canadian Municipal Corporations, at paras 8.17, 63.16.
[65] The Applicant states that the Bylaw is subordinate to the provisions of the original Crown Patent. Because the Public Lands Act section 58(3) released all reservations of trees contained in that Crown Patent, the owner of the Property holds the trees in the Property in fee simple which is directly impacted by the Bylaw. The Bylaw accordingly frustrates the purpose of the Patent and the Public Lands Act without express authorization.
[66] The Applicant refers to section 15 of the Conveyancing and Law of Property Act which confirms that trees are incidents of land and when conveyed in fee simple, transfer all right, title and interest, inheritance and use to the grantee.
[67] Section 3(1) of the Real Property Limitations Act states that no entry, distress or action shall be made or brought on behalf of Her Majesty against any person for the recovery of or respecting any land or of land or for or concerning any revenues, rents, issues or profits, but within 60 years after the right to make such entry or distress or to bring such action has first accrued to Her Majesty.
[68] I disagree with the Applicant’s position that the Bylaw which applies to the Property inhibits the owner’s right to use and to convey in fee simple incidents of the Property, i.e., the trees.
[69] The Region has not acquired any aspect of legal title to the Property which remains the owner’s private property although subject to the regulatory regime established by section 135 of the Municipal Act and the Bylaw.
[70] As indicated above, the court in Desmarais confirmed that the Crown patent does not limit governmental power to regulate land use.
[71] Furthermore, the Bylaw does not create and does not impact private property ownership in the Property nor does it create or remove Mr. Kaluznt’s interest therein. The Property is subject to the regulatory regime established by section 135 of the Municipal Act and the Bylaw regarding the use of the Property in so far as the destruction or injuring of trees thereon is concerned.
[72] In addition, the Bylaw does not frustrate the conveyance of the Property by the owner in general or of his interest in the trees thereon. Those interests can be transferred by the owner and the Bylaw does not impact his title to the subject property or the trees thereon. The Bylaw again regulates the use of the land only in so far as preventing injury or destruction of the trees without the issuance of a permit by the Region.
Is the Bylaw void because of vagueness and uncertainty?
[73] I do not agree with the Applicant’s position that the Bylaw does not expressly designate any “woodland” which it states is a precondition to the Region’s delegated authority under section 135 of the Municipal Act to regulate or prohibit trees on “woodlands designated by the bylaw” of the province when delegating authority to the Region.
[74] The definition in the Bylaw of “Woodlands” incorporates that definition from the Forestry Act. It is specific and comprehensive and refers to “all” (my emphasis added) woodlands having an area of one hectare or more and includes a provision directing how the measurements required to make the required assessment are to be taken. Referring to all woodlands (in effect, within the Region), in my view is an appropriate designation by the Region.
[75] The Applicant also states that the definitions of “Heritage Tree” and “Significant Community Tree” provide no meaningful description and accordingly, what those terms may mean is unknown.
[76] I disagree.
[77] The Bylaw defines both under 1.12 and 1.27. “Heritage Tree” means a tree identified and designated by the Council of an area municipality as having heritage significance. “Significant Community Tree” means a tree identified and designated by the Council of an area municipality as having community significance. Accordingly, each lower-tier municipality within the Region would identify and designate those trees.
[78] The threshold for finding that the Bylaw is invalid because of vagueness or uncertainty is relatively high. In my view, the test is not whether the definitions of “Heritage Tree” and “Significant Community Tree” do not allow for the determination of which trees on the Property are impacted by the bylaw with absolute certainty.
[79] In this case, there is no uncertainty or lack of intelligibility of those definitions that result in the Court being unable to perform its interpretive function of that provision in the Bylaw. The Bylaw is one of general application and there is no confusion on whether the Bylaw applies to Mr. Kaluzny’s Property when considered on its own and in context.
[80] To invalidate a bylaw, the vagueness and uncertainty must be so serious that a reasonably intelligent person would be unable to determine the meaning of the bylaw and to govern his or her actions accordingly. Oxford Construction Ltd. v. North Grenville (Municipality), 2005 Canlii 43683.
[81] That is not this case. There is no evidence that or reason why the Applicant and Mr. Kaluzny could not readily ascertain and determine from the area municipality in which the Property is located what trees, if any, on the Property have been so identified and designated.
[82] The Ontario Court of Appeal in Hamilton Independent Variety and Confectionery Stores Inc. v. Hamilton (City) 1983 Canlii 3114 ONCA confirmed that although a bylaw must provide a clear statement of the course of action which it requires to be followed or avoided and must contain adequate information as to the duties and identity of those who are to obey, not all the information need be apparent on the face of the bylaw.
[83] The Applicant has not met its onus of establishing that the Bylaw is invalid for vagueness and uncertainty.
Conclusion
[84] The application seeking a declaration that the Region’s Bylaw is invalid and without effect in whole or in part applicable to the Property and quashing the Bylaw on the basis that it is ultra vires of its enabling legislation, the Municipal Act, void as it applies to the Property and is contrary to and conflicts with and frustrates the Crown patent and sections of the Public Lands Act, Conveyancing and Law of Property Act and Real Property Limitations Act, is dismissed.
[85] If the parties are unable to resolve the issue of costs of this application, the Respondent shall provide brief submissions of no more than three pages in length together with a bill of costs and any relevant offers to settle within 15 days from the date of this decision.
[86] The Applicant shall be entitled to similarly file responding materials within 10 days thereafter.
[87] If no written submissions are received within these timelines, the parties will be deemed to have resolved the issue of costs.
Nightingale, J.
Released: September 19, 2022
SCHEDULE A
COURT FILE NO.: CV-21-604030
DATE: 2022/09/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
UPPER CANADA LAND TITLES AND PATENT RESEARCH INITIATIVE
Applicant
– and –
REGIONAL MUNICIPALITY OF NIAGARA A.K.A. NIAGARA REGION, ATTORNEY GENERAL OF PROVINCE OF ONTARIO, THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
Nightingale, J.
Released: September 19, 2022