Appellate, Civil Litigation

Requiring firm to run golf course 'worse than an expropriation'

By AdvocateDaily.com Staff

Denying property rights to the owner of a renowned Oakville golf course would be “worse than an expropriation," as forcing it to maintain the site as-is would cost the company millions of dollars per year, Toronto lawyer and arbitrator Earl Cherniak recently told an Ontario Superior Court of Justice hearing, reports the Oakville Beaver.

Last September, the company announced it had filed an application to demolish parts of the golf course. In February, the demolition application came before Oakville's Planning and Development Council where it was unanimously rejected by councillors.

The company is hoping to build 3,222 residential units on the site, as well as 69,000 square feet of commercial/retail space and 107,000 square feet of office space. The development proposal, says the company, also includes 50.11 hectares of publicly accessible green space.

Along with his co-counsel, Cherniak, partner with Lerners LLP, recently presented the company's case before Ontario Superior Court Justice Edward Morgan, in a hearing aimed at determining whether it can apply to demolish the golf course.

As the Oakville Beaver reports, if Morgan decides for the town, the company will not be able to appeal the council's rejection of its demolition application to the Local Planning Appeal Tribunal (LPAT).

Oakville argued the company’s demolition application is flawed because it applied under s. 34 of the Ontario Heritage Act, which deals with buildings and structures, while the golf course is a landscape, rather than a structure.

Lawyers for the company said the application is valid, arguing the golf course is a series of structures because they have been constructed, reports the Oakville Beaver.

Town lawyers also said that after the council voted to designate the golf course a property of cultural heritage value or interest under the Ontario Heritage Act in December, the company did not exercise its right to object by appealing the matter to the Conservation Review Board.

A lawyer for the company said it did not appeal the golf course’s designation to Ontario’s Conservation Review Board as its recommendations are not binding on the municipal council. The lawyer also disputed Oakville's apparent position that because the company did not take this route it has lost its right to object.

"What the town is doing here is trying to subvert the rule of law by denying [the company] property rights to which it is entitled," said Cherniak.

What the town is proposing, Cherniak told the court, is even worse than an expropriation because not only would Oakville not be paying the company for the property, but they would be forcing it to maintain it as a championship golf course capable of hosting tournaments like the Canadian Open, whether championship golf was ever played there, or even if it ceased to operate as a golf course.

Cherniak told the court this would cost the company around $2 million per year.

He argued Oakville is using the Ontario Heritage Act to subvert the company’s efforts to get their demolition application before LPAT. He called on Morgan to allow LPAT to consider the application on its merits, reports the Oakville Beaver.

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