Appellate, Civil Litigation

Ruling finds by-laws relating to golf course ultra vires, vague

By Staff

A recent Ontario Superior Court ruling has found that five by-laws and a town council resolution approving a Cultural Heritage Landscape (CHL) Conservation Plan for a renowned Oakville golf course will not be allowed to stand, says Toronto lawyer and arbitrator Earl Cherniak.

In 2017, the company announced it had filed an application to demolish parts of the golf course and redevelop it as a residential community. However, in early 2018, the demolition application came before Oakville's Planning and Development Council where it was unanimously rejected by councillors.

In a separate ruling earlier this fall in the matter, the Ontario Superior Court considered the question of whether the golf course and the property on which it is situated were considered ‘structures’ under s. 34 of the Ontario Heritage Act (OHA).

The court deemed it was a structure, which meant that the landowner could move forward with its application to redevelop the site under s. 34.

The latest decision concerning the site relates to Oakville’s By-Law 2017-138, enacted in December 2017, in which the town designated the site as a cultural heritage property under s. 29 of the OHA.

As Cherniak, partner with Lerners LLP and co-counsel for the landowner tells, the judge accepted the three bases argued for striking down the by-law — jurisdiction, bad faith/disguised expropriation and vagueness.

As the decision noted: “[The golf course owner] 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. Secondly, [the golf course owner] submits that the Town’s conscious disregard of the financial consequences of the Impugned By-laws, and the singling out of [the course] in the enforcement of the Impugned By-laws, reflect the Town’s bad faith in enacting them. Thirdly, it is [the golf course owner’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.”

Specifically, the golf course owner submitted that while the Cultural Heritage Landscape Conservation Plan by-law is seemingly applicable to all cultural heritage landscapes in the town, its application has been aimed at this property alone, says the ruling.

The landowner, said the decision, “contends that the continued provision of services lies at the very core of the Conservation Plan’s requirements for [the course], 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.”

In finding that the by-laws are ultra vires the authority of Oakville to enact them, the court noted: “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.”

In terms of the bad faith argument, the decision noted that counsel for the landowner submitted that the CHL By-law and Conservation Plan appeared to be the only ones of their kind in Ontario, and the only ones anywhere that target a golf course as an ongoing business.

“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.”

In finding that the by-laws are vague, the court noted: “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 [the golf course]. 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.”

As such, the court quashed the impugned by-laws, including the Conservation Plan for the property.

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