Town did not have authority to approve conservation plan

Golf course was one of Canada's most famous golf courses. Town where golf course was located developed strategy to conserve cultural heritage landscapes, including golf course following golf course’s owner advising town that it intended to redevelop golf course into residential and mixed-use community. Town passed bylaw designating golf course as being of cultural heritage value or interest under s. 29 of Ontario Heritage Act and then passed five further bylaws, the CHL Conservation Plan (CHL) bylaw, delegation bylaw, property standards bylaw, tree protection bylaw and site alteration bylaw. Main CHL bylaw authorized town to prepare or require conservation plan for significant cultural heritage landscapes located on protected heritage property. Pursuant to CHL bylaw, town council subsequently passed resolution approving conservation plan in respect of golf course that was purportedly directed at preserving cultural heritage value associated with golf course and required owner to seek permission from town prior to making any changes to golf course. Owner applied to quash bylaws and conservation plan on basis that they were ultra vires town's jurisdiction under OHA and Municipal Act (Ont.) (MA), passed in bad faith and were void for vagueness and application judge held that bylaws and conservation plan were ultra vires as they violated s. 11(8)5 of MA, and quashed them. Town appealed. Appeal allowed in part. Application judge correctly set out analytical framework as requiring consideration of each of impugned bylaws as separate legal documents but informed by broader context of scheme as whole. Application judge erred by allowing his findings regarding some of impugned documents to draw conclusions about others without adequate consideration of respective purposes, content and effects. Application judge focused primarily on CHL bylaw and treated any findings as to legality of that bylaw as determining legality of remaining instruments. All bylaws were of general application, and each instrument relied on different sources of statutory authority. Application judge's approach was incompatible with presumption of validity that bylaws enjoyed. Application judge erred in concluding that CHL bylaw was outside town's jurisdiction because it was passed without proper purpose and mandated ongoing provision of services or things by private landowner in respect of culture, parks, recreation and heritage. There was nothing in CHL bylaw that required property owner to provide services or things in respect of culture, parks, recreation or heritage. Considering content and substance of CHL bylaw led to conclusion that town had statutory authority to pass it; CHL bylaw was plainly municipal bylaw in respect of culture and heritage within meaning of s. 11(3)5 of MA and did not run contrary to s. 11(8)5 of MA as it was not bylaw respecting provision of service or thing. An examination of actual substance of remaining bylaws led to same conclusion that town had statutory authority to make each of them; bylaws were all general application, and fell within sphere of culture, parks, recreation and heritage under s. 11(3)5 of MA. Bylaws were not enacted in bad faith, were of general application and did not unfairly target owner; bylaws were not void for vagueness and were sufficiently clear when each was considered on its own and in context. Town did not have authority to approve conservation plan. Viewed as whole and practically, purpose and effect of conservation plan resolution were to require owner to provide service in respect of culture, parks, recreation and heritage by continuing to operate property as golf course, which was contrary to s. 11(8)5 of MA and was ultra vires town's jurisdiction. Conservation plan purported to regulate physical features of golf course with view to preserving heritage features of golf course, but real purpose and effect were to regulate provision of service offered by golf course. Allowing town to achieve indirectly what it was forbidden to do directly was contrary to legislature's intention expressed in s. 11(8)5 of MA. Town lacked authority to approve conservation plan, and resolution approving it was quashed.

Clublink Corporation ULC v. Oakville (Town) (2019), 2019 CarswellOnt 17137, 2019 ONCA 827, Doherty J.A., I.V.B. Nordheimer J.A., and A. Harvison Young J.A. (Ont. C.A.).

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