The legal arguments were made and the decision lies ahead
The 40 Percent Agreement (40PA) hearing did prove to be a very interesting 2 and one half days. The days sped by given the mix of legal arguments, some complex and others not so difficult and, the theatre of the lawyers with their varying styles. For much of the hearing there were more than 200 watching via YouTube… a great turnout in a much more convenient and accommodating setting for our community than a distant courtroom in downtown Ottawa could begin to be. It seems rare we can attribute something positive to Covid-19.
Three lawyers representing the City began the hearing on the morning of Monday, July 13 making the argument to Ontario Superior Court Justice Labrosse that the 40PA is a contract and that ClubLink is reneging on that contract by planning to redevelop the Kanata Golf Club property. They pressed further arguing that the ClubLink development application of October 2019 in fact triggered the obligation for ClubLink to deliver the land back to the City at no cost because it indicated they were intending not to operate the course, a requirement within the 40 PA contract. They also pushed back on the ClubLink position which suggested that the 40PA was invalid for two key reasons: the City of Kanata acted ‘ultra vires’ (outside of its designated municipal authority) in entering into the 40PA in 1981; under the Perpetuities Act, the Rule Against Perpetuities (RAP) rules the 40PA invalid after 21 years.
The KGPC followed and we were pleased with our case presentation by Alyssa Tomkins, Partner, Caza Saikaley LLP who was well supported by her colleague, Charles D’Aoust. Their arguments engaged the court in an exchange of questions and answers throughout from late Monday into Tuesday morning. They argued that the 1988 portion of the 40PA represented a restrictive covenant by tying the 40PA to the land and creating ongoing obligation by the golf course owner to the Marchwood-Lakeside community (now Kanata Lakes) and its residents (most of us) of shared use and access. They also bolstered the City team arguments against the various ClubLink positions.
ClubLink was represented by four lawyers whose arguments began on Tuesday, July 14 in the afternoon and continued into Wednesday. In addition to continuing their written arguments that the 40PA was invalid due to both the ultra vires and RAP positions, ClubLink countered the City argument that the redevelopment application was in no way a trigger. Their lawyers represented that the redevelopment application in no way commits ClubLink to the actual redeveloping the land and that ClubLink continues to operate the golf course per the 40PA.
Judge Labrosse adjourned the hearing mid-afternoon on Wednesday, July 15 noting his decision would be released in a reasonable amount of time. That is generally considered to be several months.
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