November 1st, 2019
On October 23, 2019, the Ontario Court of Appeal released two decisions in favour of the respondents ClubLink Corporation ULC and ClubLink Holdings Limited (“ClubLink”) in its ongoing disputes with the Town of Oakville over the future of the Glen Abbey golf course.
The court dismissed the Town’s appeal in which the Town sought to limit ClubLink’s right to appeal the Town’s decision to refuse ClubLink’s application to demolish or remove the golf course. The Court of Appeal also upheld the lower court’s decision quashing the Town’s Conservation Plan for the Glen Abbey golf course. While the court granted the Town’s appeal quashing five by-laws of general application, it had been through the failed Conservation Plan that the Town required ClubLink to operate a golf course on the property. Costs were awarded to ClubLink in both appeals. Lerners LLP acted for ClubLink with Davies Howe LLP in both matters before the Court of Appeal, as well as the lower court.
Oakville (Town) v. Clublink Corporation ULC, 2019 ONCA 826 – Section 34 Application Appeal
ClubLink is the owner of the Glen Abbey golf course. In October 2015, it advised the Town of its intention to redevelop the golf course with residential and community uses and significant public parkland. In May 2017, the Town began its initial steps towards designation of the golf course as a property of cultural heritage value under s. 29 of the Ontario Heritage Act (“OHA”).
In November 2017, ClubLink submitted to the Town an application to demolish the golf course under s. 34 of the OHA which permits an owner to make an application to demolish or remove a building or structure on a heritage-designated property. The Town refused to process the application initially, taking the position that the application was beyond the scope of s. 34 but was properly within the scope of s. 33, which permits an owner to apply to “alter” a designated property.
The central difference between ss. 33 and 34 lies in the procedural rights and appeal routes afforded to an applicant under each section. Under s. 33, the Town’s decision on whether to accept or reject an application is final, subject to a referral to the Conservation Review Board for a non-binding recommendation. Under s. 34, an applicant dissatisfied with the Town’s decision may appeal the decision to the Local Planning Appeal Tribunal. In short, while ClubLink’s s. 34 application would be subject to an appeal of the Town’s decision, the Town sought s. 33 to apply which would give it final decision-making authority over the demolition or removal of the Glen Abbey golf course.
The central issue in applications before the Superior Court was the meaning of the term “structure” within s. 34. If the golf course was a “structure”, ClubLink could apply to demolish or remove it.
Justice Morgan concluded that the golf course “is both composed of structures and overall is a structure for the purposes of s. 34”. He held that ClubLink properly framed its application under s. 34. The Town appealed.
The Court of Appeal upheld Justice Morgan’s decision in favour of ClubLink.
Writing for the majority, Justice Harvison Young found that the statutory interpretation of the OHA and these provisions supported that, while the purpose of the OHA is to protect heritage of Ontario, the broad powers of municipalities to designate a property under the OHA were counterbalanced with procedural protections of which s. 34 and its appeal route was one. The legislative history of s. 33 and 34 “reflects a particular balancing of private property rights and heritage conservation.” Section 34 provides for greater procedural protections for the property owner for a particular “subset of ‘alterations’ involving a ‘demolition or removal’ of a ‘building or structure’ that would wholly remove the cultural heritage attributes associated with the property.”
Looking at the text of s. 34 itself, Justice Harvison Young upheld that the golf course was a “structure” within the meaning of s. 34 for four reasons:
- The legislative context for the term “structure” in s. 34 is the “building-centric” conception of cultural heritage. In the context of this provision, it is important to consider that the demolition of a structure on the designated property would wholly remove the property’s cultural heritage value or attributes;
- The term “structure” is a “mutable concept”. Notably, the Town defined the term in its zoning by-law as “anything erected, built or constructed of parts joined together”. The term must be considered in context. The uncontroverted evidence was that the golf course is the product of significant construction and engineering, consistent with it being a structure;
- The use of the term “structure” elsewhere in the OHA indicates that the legislature intended the term “structure” to include constructed landscape features and was not limiting the term to “’building like’ structures”; and
- The word “on” used in s. 34 in the phrase “building or structure on the property” does not modify the meaning of the word “structure” so as to refer only to structures that are physically located above or separate from the ground. The word “on” in s. 34 identifies structures contained within the property. This is consistent with how the term is employed elsewhere in the OHA.
Justice Harvison Young commented that the demolition of the golf course would engage the very reason for the property’s designation. The court found that this is precisely the type of situation the legislature contemplated would be captured by s. 34. This favours interpreting the term “structure” broadly to capture the golf course, in order to give effect to the legislative intent underpinning s. 34.
In his dissenting opinion, Justice Nordheimer held the appeal should be allowed. He did not find the fact that there were two appeal routes to be instructive, and was critical of the application judge for not engaging in an interpretation of s. 33.
He further reasoned that the ordinary meaning of the word “structure” did not include a golf course, i.e., people who see a golf course would think of it as land and not a structure. According to Justice Nordheimer, it is more appropriate to construe ClubLink’s application as falling within s. 33 because the “land” is an essential feature of the cultural heritage of the golf course and the “land” would remain if the course was demolished. The majority disagreed; this assertion ignores that the Town did not limit its characterization of the cultural heritage attributes to the land. Rather, the Town references the golf course features including its “ongoing ability…to be used for championship, tournament, and recreational golf”.
Justice Nordheimer further reasoned that the OHA’s purpose of protected heritage properties is furthered by broadly construing s. 33, as that would give municipalities the final say over the proposed changes to the designated property. The majority again disagreed. This assertion fails to consider that ss. 33 and 34 are not primarily concerned with the Town’s power to achieve the purpose of the OHA. They are concerned with providing procedural protections to property owners and are both consistent with the overarching goals of the OHA.
Finally, Justice Nordheimer suggested that the fact that ClubLink has not directly challenged the heritage designation is relevant to the scope of s. 34 as a successful demolition application would have the effect of a repeal of the designation. The majority disagreed. This assertion fails to consider the legislature’s intent to provide property owners with multiple avenues to deal with a designated property. Seeking a review of the designation by-law is only one such avenue; s. 34 provides another route that, in this case, “made practical sense for ClubLink.”
Clublink Corporation ULC v. Oakville (Town), 2019 ONCA 827 – By-Law Appeal
This appeal originated from an order of Justice Morgan quashing five by-laws said to be of general application passed by the Town, and a Conservation Plan specific for the Glen Abbey golf course on the basis that they are ultra vires, were passed in bad faith, and were void for vagueness. The impugned instruments were passed after the Town designated the golf course as a property of cultural heritage value under the OHA.
The main by-law in question, the CHL By-law, authorizes the Town to prepare or require conservation plans for “cultural heritage landscapes” located on “protected heritage property”. It is not limited to the Glen Abbey golf course, although it had only been applied to it at the time of the application. Pursuant to the CHL By-law, the Town passed a resolution approving a property-specific Conservation Plan for the golf course. That Conservation Plan required ClubLink to seek permission from the Town prior to making changes to the golf course including, for example, a change to the location of a tee or hole.
Justice Morgan found at first instance that the Town lacked the jurisdiction to make all the impugned by-laws and Glen Abbey-specific Conservation Plan because they constituted a regulation of “services or things” in relation to “culture, parks, recreation and heritage” contrary to s. 11(8)5 of the Municipal Act. He further found that the by-laws and Conservation Plan were passed in bad faith and were void for vagueness. The Town appealed to the Court of Appeal.
The Court of Appeal allowed the appeal in part but refused the Town’s relief as it related to the Conservation Plan. It found the Town had authority to pass all the impugned by-laws, they were not passed in bad faith and were not void for vagueness. However, the Town did not have the authority to approve the Conservation Plan which was specific to Glen Abbey. The court also declined to consider (and, therefore, did not overturn) the findings of bad faith and vagueness as it related to the Conservation Plan. Costs were again awarded to ClubLink.
Writing for the majority, Justice Harvison Young found that the Conservation Plan’s purpose and effect are to compel Clublink to provide a service, contrary to s. 11(8)5 of the Municipal Act.
The Court of Appeal found that the legality of each impugned by-law and the Conservation Plan resolution must be analyzed separately. Although Justice Morgan set out the correct analytical framework, he erred in allowing his findings on some of the impugned documents to inform his conclusions about others and in treating his findings about the legality of the CHL By-law as determining the legality of the remaining by-laws. As each instrument relies on differing sources of legislation and each by-law or resolution is presumptively valid, each by-law needed to be considered separately.
The Court of Appeal found there was nothing in the CHL By-law itself that requires a property owner to provide services or things in respect of culture, parks, recreation or heritage. Though only applied to ClubLink thus far, on its face this by-law is intended to apply to a wide range of properties. The Court found that it is therefore consistent with statutory authority granted to the Town under the Municipal Act and the OHA and was not void for vagueness.
The Court of Appeal also found that the remaining impugned by-laws are all by-laws of general authority and not void for vagueness on their own. Nothing in any of them regulates the provision of services or things. They are supported by grants of power under the OHA and Municipal Act.
There is also a presumption of good faith. As the by-laws are of general application, the Court of Appeal found that they do not unfairly target ClubLink and held that Justice Morgan’s finding that the CHL By-law disregarded Clublink’s economic interests by compelling it to run the golf course was misplaced. It is the Conservation Plan that achieves this result: “when each impugned by-law is given proper consideration and distinguished from the conservation plan, the record is insufficient to overturn the presumption that each by-law was enacted in good faith.”
When looking at how the CHL By-law was applied to Glen Abbey, the Court of Appeal reached a different conclusion. The purpose and effect of the Conservation Plan is to force Clublink to continue to provide a service, i.e., to operate a golf course. It has the effect of compelling the provision of a service, which is specifically prohibited by s. 11(8)5 of the Municipal Act. Justice Harvison Young pointed to four factors in support of this conclusion:
- The “Scope of Work” for the Conservation Plan specifically said that its purpose was to “address how Glen Abbey can be managed and used as a golf course…”
- The cultural heritage attributes of the Glen Abbey property, as determined by the Town, include the “ongoing ability” of Glen Abbey to be used for golf. As the Conservation Plan requires Town approval for changes that are likely to affect the cultural heritage attributes, any change that may affect “current readiness” for Glen Abbey to be available for golf requires Town approval. The majority rejected the suggestion in the dissenting opinion that ClubLink could cease operations of the golf course and be in compliance with the Conservation Plan.
- The categorization of actions in the Conservation Plan requiring Town approval make it clear that “any change to Glen Abbey that affects the way a round of golf is played there is subject to Town approval. The conservation plan very closely regulates Glen Abbey and seeks to subject any meaningful change to the course to public scrutiny.”
- The effect on ClubLink must be considered. While theoretically ClubLink could stop operating a golf course on the property and be in compliance with the Conservation Plan, the economic impact of such a decision means that, practically speaking, ClubLink must operate Glen Abbey as a golf course: “The economic reality created by the conservation plan is not incidental to an otherwise legitimate or legal purpose; it is part and parcel of an otherwise non-legal purpose.”
The application judge was correct to quash the resolution approving the Conservation Plan. As this ground of appeal was determinative, the Court of Appeal did not consider further whether the Conservation Plan was also approved in bad faith or was vague. However, the basis upon which the Conservation Plan was quashed is at least consistent with “a disguised expropriation” as that concept was described by the Supreme Court of Canada in Lorraine (Ville), an argument that was advanced by ClubLink in the Court of Appeal.
Justice Nordheimer dissented. In his view, one must read s. 11(8)5 of the Municipal Act restrictively. He found that there is nothing in the Conservation Plan that requires ClubLink to operate a golf course on the property; it simply restricts activities that ClubLink can take on the property in relation to the cultural heritage attributes in the designation by-law, which was not challenged. He rejected that ClubLink is harmed by the practical requirement that it has to operate a golf course, noting that ClubLink has operated the course for two decades and, in any event, could sell the property. Justice Nordheimer would have also overturned the other bases for quashing the Conservation Plan.
The appeal was allowed to the extent that the application judge quashed the by-laws of general application. The order quashing the property-specific Conservation Plan was upheld with partial costs to ClubLink. No costs were awarded to the Town.
 Oakville (Town) v. Clublink Corporation ULC, 2019 ONCA 826 (“2019 ONCA 826”)
 Clublink Corporation ULC v. Oakville (Town), 2019 ONCA 827 (“2019 ONCA 827”)
 2019 ONCA 826, at para. 10
 2019 ONCA 826, at para. 12
 2019 ONCA 826, at para. 20
 Town of Oakville v. Clublink, 2018 ONSC 6386 at para. 45
 2019 ONCA 826, at para. 46
 2019 ONCA 826, at para 48
 2019 ONCA 826, at para 56
 2019 ONCA 826, at para 66
 2019 ONCA 826, at para 71
 2019 ONCA 826, at para 72
 2019 ONCA 826, at para 74
 2019 ONCA 826, at para 72-75
 2019 ONCA 826, at para 76
 2019 ONCA 826, at para 79
 2019 ONCA 826, at para 78
 2019 ONCA 826, at paras 77-80
 2019 ONCA 826, at para 80
 2019 ONCA 826, at para 81
 2019 ONCA 826, at paras 95-98
 2019 ONCA 826, at paras 109-114
 2019 ONCA 826, at para 121, 130
 2019 ONCA 826, at para 82
2019 ONCA 826, at para 127-129
 2019 ONCA 826, at para 85
 2019 ONCA 826, at paras 84-85
 2019 ONCA 826, at para 131
 2019 ONCA 826, at para 83
 2019 ONCA 827, at para 3
 2019 ONCA 827, at para 60
 Clublink v Town of Oakville, 2018 ONSC 7395, at para 35
 2018 ONSC 7395, at paras 72, 83
 2019 ONCA 827, at para 75
 2019 ONCA 827, at para 76
 2019 ONCA 827, at para 76
 2019 ONCA 827, at para 67
 2019 ONCA 827, at para 30
 2019 ONCA 827, at para 30
 2019 ONCA 827, at para 44
 2019 ONCA 827, at paras 44-49
 2019 ONCA 827, at paras. 53-55
 2019 ONCA 827, at paras 51-53
 2019 ONCA 827, at para. 54
 2018 ONSC 7395, at para. 72
 2019 ONCA 827, at para 54
 2019 ONCA 827, at para 32
 2019 ONCA 827, at para 58
 2019 ONCA 827, at para 59
 2019 ONCA 827, at para 64
 2019 ONCA 827, at para 60
 2019 ONCA 827, at para 65-68
 2019 ONCA 827, at para 57
 2019 ONCA 827, at para 90
 2019 ONCA 827, at para 93-95
 2019 ONCA 827, at para 101