eNews – We Have Had Enough – We are Taking it to ClubLink

This eNews has a lot of information that you need to read. The OLT is almost over, leave to appeal to the Supreme Court of Canada, return to the Ontario Superior Court of Justice, upcoming Town Hall on Wednesday…and more.

Ontario Land Tribunal (OLT) – Almost over.  What did we accomplish?

The OLT panel closed the hearing on Monday, February 14 save for the final written submissions from the parties which are due by February 24.  The two-person panel has two applications from ClubLink to consider –an approval of a Draft Plan of Subdivision and a Zoning By-Law for the 70 hectares of the Kanata Golf Club (KGC) lands.  There is no specific deadline for its decisions.

ClubLink’s lawyers pushed the panel forward throughout the hearing after beating back initial KGPC and City motions requesting a hearing delay due to the absence of the crucial stormwater management (SWM) plan.  Over the next 15 hearing days, the City and Coalition offered shared and separate arguments as to the prematurity of the applications.  In a strategy intended to avoid weakening its prematurity argument, the City chose not to provide the anticipated set of Draft Plan Conditions which essentially form the backbone of the OLT’s dispute resolution process, especially on large developments.  Remember, the OLT’s focus is on resolving disagreements impeding development not resolving the overarching issues which might include opposition to development.  ClubLink was determined to get those Draft Plan of Conditions in front of the OLT and was successful in boxing the City into a corner mid-hearing and forcing it to hastily create 192  Conditions of Draft Plan Approval.  As a result, the City and the Coalition had to argue the merits of these quickly drafted conditions without the benefit of consultation, while simultaneously arguing the prematurity of the development.   Generally, a questionable strategy by the City which some might say was poorly played.

Of the 192 conditions originally proposed, 18 Disputed Conditions of Draft Plan Approval remain at the close of oral submissions.  The Coalition remained steadfast in support of those issues having the most impact on our community and its residents and, in doing so, were met by opposition from ClubLink, the City or both.   We…

  • opposed the City’s plan to fence all open properties, in an effort to protect our existing ‘fenceless’ vistas and seamless access to buffers from private lands
  • protected a promised tree canopy of new trees planted in the tough clay soil with extended replacement warranties
  • alone proposed an effort to enhance the assessment and identification process around contamination on the site and tighten the processing and safety consideration of soils during development
  • supported an effort to restrict the start dates of early servicing and plan registrations to the completion of essential SWM modeling
  • alone proposed an effort to increase the obligation to consult all downstream Kizell landowners beyond solely the National Capital Commission for approvals of changes to the sub-watershed

A key driver behind the ClubLink/Minto/Richcraft rush to the OLT for speedy Draft Plan Approval, is its function as a trigger to allow for the initial steps of development to begin.  Draft Plan approval NOW, and long in advance of the approval and acceptance of a detailed application by the City, will allow land transfer to occur and builders to begin selling the proposed lots and (re)grading the 70 hectare property.  This is why the Coalition has so forcefully pushed back on the issue of site contamination and on the incomplete environmental assessments as related to contamination.  The soil on this property should not be (re)graded until the contamination is well defined, located and an appropriate remediation strategy identified for the land and water on and off the site.

Regrading will also  include  soil preloading, one of the City’s Conditions of Draft Plan approval.  As you can read in the explanatory link above, soil preloading is a multi-year exercise requiring mountains of soil to be stockpiled across a development site to allow time for soil settling prior to its use in backfilling new foundations.  This is particularly critical when existing soil quality is relatively impervious, such as the marine clay which covers the bedrock of the KGPC lands.

A mountain of preloaded fill, settling in Kanata North.   February 2022

On this 70 hectare site, imagine many mountains of dusty earth, blowing soil and growing as weedy eyesores over the 10 plus years and phases of this development.  You will see the picture above repeated over and over throughout our greenspace while the blasting goes on around it.

Alarmed yet?  With this picture in your mind, we’d be foolish if we did not ask you here and now for your financial help so that we can take every opportunity to stop this development.  PLEASE…..DONATE NOW…but you must read on!

There are many, many issues still outstanding and we will continue working with Councillor Curry and the Mayor’s Office to prevent the planning issues of this file from being buried inside the bureaucracy and that the KGPC and our community have as large an opportunity on issue resolution as we are able to get.  Little is assured.

We will provide you with the final written submissions of all the parties to the OLT after they are filed this week.  In addition to some very large invoices resulting from our OLT participation,  we have some good news too.  The Coalition came out of this exercise with a critical portfolio of issues and data as well as elaborate SWM analysis.  During the hearing the City signaled the need for the continuation of a broad stakeholder discussion and consideration of the Kizell sub-watershed before this development and the others in the development cue ahead of it can be approved. Think the KNL lands and parcels 7 and 8 north of the Beaver Pond which have been wasting treeless  in mud for 8 or more years.   It all depends on development of the same SWM system.

Next Steps …  The Courts are the best place for ClubLink

We have repeatedly stated the longstanding view of our experts – the legal arguments in this matter provide much better opportunities for the Coalition and the City to save our greenspace than arguing planning opinions.  Let’s turn to the legal landscape.

Supreme Court of Canada (SCC) 

The leave to appeal was filed by the City in late January and we are waiting to find out if that submission will earn the less than common opportunity to argue the voiding of two 40PA clauses by the Ontario Court of Appeal (ONCA).  That decision will probably come towards the summer and, with success, a SCC hearing in 2023 should follow.  Remember, if the City is successful in convincing the SCC to clarify the confusing law contributing to the ONCA decision, this could provide a definitive solution to the protection of the greenspace.  But what if they are not successful? Is there anything else that can be done?

Ontario Superior Court of Justice

In January, ClubLink asked to return to the court of Justice Labrosse to test the impact of the ONCA decision on his original ruling.  Given his is considered a lower court, technically, this matter should wait until either the SCC refuses to hear the leave to appeal (summer 2022) or the SCC renders its decision in the matter (perhaps 2023).   As we told you last month, ClubLink stated its intention to oppose participation by the Coalition… yet again.

We know you want this atrocious ClubLink/Minto/Richcraft saga over as much as we do.  The time is right, armed with a wealth of expert information gathered for the OLT to take another strong legal argument to the courts to provide a second ClubLink stopper should the City not be successful at the SCC.


You read that right!  On Tuesday, February 22, the KGPC will take the definitive step and issue a notice of application in Ontario Superior Court to stop the ClubLink development of the KGPC lands citing two restrictive covenants.

For your benefit, a Restrictive Covenant according to Oxford Languages is “a covenant imposing a restriction on the use of land so that the value and enjoyment of adjoining land will be preserved.”

The first part, a Restrictive Covenant concerning Greenspace, you have heard about before.  It is the ‘40% principle’ that our lawyers originally argued before Justice Labrosse in July 2020. You’ll remember that in his decision he upheld the 40% Agreement accepting the City’s contractual arguments in its defense and, in so doing, did not consider this separate and distinct argument put forward by the Coalition.  Our legal team believes it is valid and should be before the court.

The second part, a Restrictive Covenant concerning Stormwater Management  stems from an agreement which ClubLink signed when it acquired the KGC lands in November 1996 and which specifically restricts the (re)grading of the land and altering its inherent SWM function.  The KGPC intends to ask the court to enforce both of these restrictive covenants to stop the proposed ClubLink development.  We’ll copy you on the document after it is officially filed.

Why pursue this now?

While the restrictive covenants can stand on their own in the Superior Court, our legal team believes that making this application could assist the Coalition in its efforts to obtain standing in the court in the face of the proposed opposition from ClubLink and, ultimately, allow us to make our arguments on the 40% Agreement relative to the ONCA decision.

Regarding the SWM restrictive covenant, if you were watching Day 1 of the OLT, you might remember that ClubLink’s lawyers brought a motion to remove all written references in the testimony of the Coalition’s SWM expert to this SWM restrictive covenant.  They successfully argued that this legal agreement was outside the planning purview of the OLT panel and even referencing its existence was inappropriate.  Clearly ClubLink did not want its content to adversely impact the view of the OLT panel.   We believe this SWM restrictive covenant represents an important impediment to this development and we want to ensure that it sees the light of day in a courtroom!

As noted above, the appeal to the SCC takes precedence over other legal actions and now that it has started, will run its course.  Once again, should the City’s SCC appeal fail for any reason, this alternative action will provide our supporters a sense of control over their destiny and a powerful argument in opposition.

Help us SAVE OUR GREENSPACE – Donate Today

2022 will prove to be expensive yet again.  The OLT costs are not all in as yet but we know they will exceed $150,000.   All this to say, we hope you sense a good winnable fight ahead and that the Coalition intends to use every possible means to stop ClubLink.  Take heart and join us.   We need your financial support more than ever!  In exchange, we commit to keeping you informed of our expectations, activities, and results… and staying with it on behalf of our community.

We are counting on  many more sunrises and sunsets over our open and greenspaces.  We hope you are too.  May we thank you in advance for your donation today?

You Can’t Miss Our Virtual Town Hall!

Tune in this Wednesday, February 23 at 7pm

The important details on the Town Hall, including the YouTube link you’ll need to join. With so much going on … this is an efficient way to make sure you are up to date.

We’re all about answering your questions too.  Send them in advance to townhall@ourkanatagreenspace.ca and we’ll also take your questions live!

We have witnessed tremendously difficult times in our City over these past few weeks.  The KGPC is hopeful that peace and quiet has returned permanently to all of your family and friends trying to live and work in Ottawa’s downtown core.  Take good heart and good care wherever you are.

We’re in this together and we need your support to keep making progress!

See you at the Townhall!


Barbara Ramsay
Chair, Kanata Greenspace Protection Coalition
T – 613-725-6595
E – chair@ourkanatagreenspace.ca

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