November 14, 2024
Yesterday our counsel participated as an Intervenor at the Ontario Court of Appeal (ONCA) on the 40% Agreement between the City of Ottawa and ClubLink. The two main parties, the City and ClubLink had 2 hours each for their arguments. The Coalition, as an Intervenor, had 30 minutes. The arguments were complex. Summary here…
Yesterday our counsel participated as an Intervenor at the Ontario Court of Appeal (ONCA) on the 40% Agreement between the City of Ottawa and ClubLink. The hearing, planned as a half day, ran from 10am to 4:30pm. The two main parties, the City and ClubLink had 2 hours each for their arguments. The Coalition, as an Intervenor, had 30 minutes. The arguments were complex. Your thumbnail summary is below.
Counsel for the City began the argument. The City argues that, where interests in land are rendered void by the Perpetuities Act (which was the previous decision of the Court of Appeal), the remainder of a contract is unaffected. As a result, the traditional approach to common law illegality (which would result in an entire contract being void) is not at issue and the doctrine of severance, a modern approach which provides for partial enforcement of contracts containing illegal clauses, is inapplicable.
The Court asked a lot of questions relating to the Court of Appeal’s previous decision and its direction to Justice Labrosse. The City took the position that Justice Labrosse misunderstood that direction and that he erred in finding that he had to do something which resulted in him striking other provisions in the 40% Agreement.
Our counsel then made their argument. We supported the City’s position but offered an alternative approach: if the Court was of the view that the doctrine of severance did apply, Justice Labrosse had failed to apply the correct legal test and made findings that were unsupported by record. While the City’s approach is legally sound, it is based on older case law. We wanted to offer the court an alternative approach, that would get to the same result (only s. 5(4) and 9 would be severed leaving the remainder of the 40% Agreement intact).
We took the Court through the test, first showing that the core of the bargain was the protection of open space, whereas the so-called off-ramps (development of the land) were ancillary and unlikely to occur. We then went through the contextual factors, with emphasis on two of the four factors required by the Supreme Court: 1) the developer’s conduct and position in the lead up to the bargain and 2) the potential for a windfall at the expense of the community. With respect to the former, we highlighted that it was the developer that had proposed the 40% principle and the operation of the golf course, in the interests of being able to charge premiums for the lots. With respect to a potential windfall, we suggested that it would be enormous, considering ClubLink’s acquisition price reflected the highly restricted use of the land, whereas Justice Labrosse’s approach provides a path to full redevelopment.
ClubLink’s counsel defended Justice Labrosse’s approach, arguing that his findings are questions of mixed fact and law, meaning that the Court of Appeal needs to defer to those findings. They criticized the City’s approach and argued that the doctrine of severance can apply here. They appeared to acknowledge that using the doctrine to strike otherwise lawful provisions would be an extension of the law. They then focused on reviewing the various court decisions to emphasize the existing findings that the so-called off-ramps were critical to the bargain and that there was always and intended path to development. ClubLink counsel also tried to provide the court with authority to contradict the City’s approach and to limit case law application the City relies on.
In concluding, Counsel for the City was very strong in reply to ClubLink. Unfortunately, as an Intervenor, we were not allowed reply.
The Court of Appeal reserved (they will decide at a future date) on what will be a difficult decision. The case raises novel issues and will likely require either new law or situating the older law relied upon by the City in the more recent case law.
As you have seen before the settling of costs across winning and losing parties can be a significant portion of total legal costs. The KGPC has agreed with ClubLink that there will be no costs to either party with the court’s decision in this case. ClubLink and the City have agreed to $95K in costs to the successful party.
All things considered, we feel our organization had a very good outing in the hands of our legal counsel Alyssa Tomkins and Charles Daoust. Our plan is to wait until we have the decision of the court before moving towards to our next steps. A Townhall approach to communication is again in our plans when that happens. We hope we can reach out with the decision soon.
And some good news to be shouted…
Alyssa Tomkins, a distinguished partner in Gowling WLG’s Ottawa office, has been recognized as one of Canadian Lawyer’s Top 25 Most Influential Lawyers for 2024 in the Human Rights, Advocacy and Criminal category.
Canadian Lawyer’s Top 25 list is based on an annual reader survey and highlights lawyers who have made a significant impact on the legal profession in Canada and worldwide within the last 18 months. More: Canadian Lawyer Top 25 Most Influential Lawyers | Gowling WLG
Alyssa Tomkins, has been named to the top 25 lawyers in Canada by Canadian Lawyer. We could not be prouder given her steadfast leadership in this 5-year long fight with ClubLink. Her talents are obvious and her genuine caring for community issues evident. We are so grateful to her and to Charles Daoust for his unwavering efforts on our behalf. We would not have come this far without them. Thank you both!
The golf season has wrapped. Let’s embrace our shared space!
It is nice to see so many out taking in our space once again. Please remember, as you enjoy walking, running, x-country skiing and snowshoeing on our beautiful space, stay off the greens, avoid damaging the turf and pick up after your dog.
We hope to be in touch soon with the ONCA decision. The Kanata Greenspace Protection Coalition (KGPC) truly appreciates your support. We cannot do this without you! Remember, we remain better together!
Take good care,
Barbara
Chair, Kanata Greenspace Protection Coalition
E – chair@ourkanatagreenspace.ca
C – 613.725.4345