The situation is just not as bleak as media reporting began to sound on Friday. We’re writing today with a step by step review of where the community really sits after the Court of Appeal decision. Your team at the Kanata Greenspace Protection Coalition (lawyers and all) has been working through the weekend, setting our next steps in motion for the coming week, and reassessing our short and medium term plans given Friday’s decision.
Let’s Slow this Down and Take One Step at a Time…
We truly hope you have been able to find a few moments to take a deep breath and relax somewhat since the tumultuous release of the decision by the Court of Appeal on Friday. It is fair to say that we all hoped for a full-throated rebuke of ClubLink and everyone is disappointed that it did not happen.
But the situation is just not as bleak as media reporting began to sound on Friday. We sent you our Press Release as quickly as we could to give you some correct information and to try to confirm for you what is most important … the 40 Percent Agreement (40PA) remains alive and enforceable.
We were truly saddened by the anguish our supporters shared in emails and phone calls that continued to come in to us throughout Friday and into Saturday. Houses being put up for sale this weekend. People seeing no future. Folks exhausted by the up and down of this rocky ride. It was shocking and terribly difficult to both read and hear. We do understand your anguish. It has been a roller coaster ride for the last three years. It is about your home and family and cherished memories and the environment too. For most of us, these are the most valuable and irreplaceable aspects of our lives.
So, we’re writing today with a step by step review of where the community really sits after Friday’s Court of Appeal decision. Your team at the Kanata Greenspace Protection Coalition (lawyers and all) has been working through the weekend, setting our next steps in motion for the coming week and reassessing our short and medium term plans given Friday’s decision. Remember, we have said all along…this was always going to be a marathon and not a sprint! Let’s get at it!
Where are We… after the Court of Appeal decision
What did the court actually decide on Friday?
The Court of Appeal ruled in ClubLink’s favour on a narrow legal principle by finding that two clauses in the 40PA were invalid because they violated the “rule against perpetuities”.
Clause 5(4), the first clause ruled invalid by the Court of Appeal, states that if the golf course owner wishes to stop operating the golf course and cannot find a new buyer or someone to operate the land as a golf course, the owner is obligated to transfer the property to the City at no cost. ClubLink successfully convinced the Court of Appeal that this clause created a “contingent interest in land” and, as a result, invoked the “rule against perpetuities” which requires the transfer of the land within a 21 year period or the interest in the land expires. We remind you that ClubLink has owned the land for 24 or more years.
Should the City accept that transfer of land from ClubLink, it would continue to operate the golf course, subject to clause (9) which, as an alternative, would allow the City to keep the property as greenspace only (i.e. as a space for recreational and natural environment purposes). In the Court’s mind, as with 5(4), Clause 9 became invalid because it also is premised in this concept of an expired interest in the land after 21 years.
So, the Court allowed the appeal by ClubLink with the limited acknowledgement that Justice Labrosse had erred in concluding that clauses 5 (4) and 9 of the 40PA did not violate the “rule against perpetuities”. In fact, the decision granted actually fell well short of what ClubLink had requested which was the invalidation of the entire 40PA. The Court limited its ruling to clauses 5 (4) and 9 only, specifically declining to invalidate the entire 40PA.
The Court of Appeal did leave the parties to discuss what, if any, impact the now invalid clauses have on the 40PA and subsequent agreements relating to the golf course lands. If the parties cannot now agree on where any issue(s) stand, the Court of Appeal stated that they should then return to Justice Labrosse’s court, the lower court judge who heard the original application in July 2020, for a decision.
Where does that leave the 40PA and you and our community?
Until another court rules differently, the 40PA stands and the following remain enforceable:
- The obligation of ClubLink and the City to respect the Forty Percent Principle to maintain 40% of the original development area including the golf course, as greenspace [clauses 3 and 10].
- The obligation of ClubLink to operate the golf course in perpetuity [clause 5 (1)].
- Should ClubLink find a buyer for the golf course, the City’s right of first refusal to purchase the golf course on the same terms and conditions as agreed to with the buyer [clause 5 (3)].
- Should ClubLink sell the golf course to a buyer other than the City, its obligation to require the buyer to sign an agreement to operate the golf course in perpetuity on the same terms and conditions as laid out in the 40PA [clause 5 (2)].
Is our greenspace including the golf course lands safe from the bulldozers?
It was reported by some media outlets that Friday’s Court of Appeal decision cleared the way for ClubLink to develop the golf course and build its proposed 1,480 plus homes.
This is incorrect. ClubLink’s development proposal remains incompatible with its legal obligations under the 40PA despite the changes resulting from the decision.
Here are a few reasons why:
- The Court of Appeal decision to invalidate clause 5(4) may eliminate ClubLink’s sole legal path in the 40PA [clause 5(5)] to end its obligation to operate the golf course in perpetuity and to apply to develop the property under the Planning Act. Our legal team will follow up on this.
- The City rejected the ClubLink zoning and subdivision applications to support development of the golf course based on important issues in two key areas, planning and stormwater management (SWM). As you already know, ClubLink is taking that rejection to the Ontario Land Tribunal (OLT) for consideration at a hearing in January 2022. Unless that hearing is ‘stayed’ or put on hold, its Chairperson will have to confront the fact that the restrictions on the use of the golf course property imposed by the 40PA (e.g., that it must be operated as a golf course in perpetuity) prevent the residential development that is being proposed.
- The golf course property is also subject to restrictive covenants which limit the way the property can be used.
What is the KGPC doing?
We appreciate that at times our supporters must wonder “What’s the City doing?” “Does the Coalition have a plan for this?”
The KGPC wants to confirm that our legal and planning experts put all of these issues on our radar two years ago as we strategized a path forward to shut ClubLink down. Our plans, on both the planning and legal fronts are robust. We have amassed considerable work along the way to backstop solutions for the many roadblocks we could see. (i.e. stormwater and environmental expert opinions, legal opinions )
Unfortunately, while we see the finish line too…there are hurdles between here and there. We cannot just run around them, we must jump them. First off, the legal system is defined by processes that opposing parties must respect, and work through the courts to get issues resolved and final decisions made. In our case, we face additional challenges. For example, a key stumbler up until now, the community is not a party to the original 40PA. It forces us to sit back and let the process come to us and wait for our opportunities to intervene. But, our plan is ready and so is our team.
So, what can you expect next?
The KGPC board met on Saturday afternoon with our entire legal team to review Friday’s decision and its impact on our plan. Now that the decision is finally out, our lane opens up and a new race begins.
On Friday, David White, City Solicitor released a Memo to Council on the matter (excerpt here). The City also stated that it was “disappointed” with the Court of Appeal decision to invalidate clauses 5(4) and 9 of the 40PA; there were errors in the Court’s decision and; as a result, they would seek leave to appeal the decision to the Supreme Court of Canada (SCC). The KGPC appreciates the City’s commitment to the integrity and protection of the entire 40PA and, fully supports its application for leave to appeal to the SCC.
The KGPC will join the other parties to discuss the impact that the invalidated clauses have on the remainder of the 40PA and we will stay involved if the matter is returned to Justice Labrosse for a decision. We are also reviewing legal remedies that support our original arguments around restrictive covenants that have the ability to force ClubLink to respect its obligations under the 40PA.
On the planning side, we are in the last strides of finalizing our work and we will be at the OLT hearing in January to ensure no opportunity to shut ClubLink down is missed.
We have meetings set up early this week with our Councillor Cathy Curry, the Mayor’s office and with City legal staff to understand where they are after Friday’s decision. We remain willing to work with the City and are always looking for ways to be collaborative.
MPP Merrilee Fullerton reached out to us on Friday to discuss ways in which she can help and engage support at Queen’s Park. We’ll work on that together. We reached out to MP Jenna Sudds requesting a meeting as well.
We expect to be able to provide you with an update by early next week. We know this is a priority for you … and we’re on it!
GIVING TUESDAY… Tuesday, November 30
“We have two days that are good for the economy.
Now we have a day that is good for the community too.” ~ Giving Tuesday Canada
- Help KGPC secure your environmental rights and STOP CLUBLINK.
- Help KGPC protect our trees and greenspace and STOP THE CLIMATE CHAOS going on around us.
- Help KGPC support and PROTECT OUR NEIGHBOURHOODS embedded in nature.
Thank you for considering a gift to support the KGPC this GIVING TUESDAY.
Please continue to reach out with your questions and concerns. We are always pleased to hear from you. We hope that our message today has helped both correct misinformation and provide some encouragement along the way. As we said, you will hear from us very soon.
In the meantime, please take care of yourself and those around you given the latest pandemic news and the newest challenge we face in the Omicron variant.
Remember, you are not alone in this fight. We’re ALL better if we stay together!
Chair, Kanata Greenspace Protection Coalition
T – 613-725-6595
E – email@example.com