A judge with the Ontario Superior Court of Justice has struck down bylaws that designated a golf course as a cultural heritage property under the Ontario Heritage Act.
In Clublink v. Town of Oakville, 2018 ONSC 7395, Justice Edward Morgan found in favour of the owners of the course, Clublink Corporation ULC and Clublink Holdings Limited, and ruled that five bylaws enacted by the Corporation of the Town of Oakville concerning the Glen Abbey Golf Course should be quashed.
In a statement provided to Legal Feeds, Robert Visentin, senior vice president of ClubLink said: “We are reviewing the decision in detail, but we do believe it is consistent with our position all along, which is that these bylaws are not legal and represent a significant over-reach by the Town of Oakville.”
The judge also ruled against a resolution by the town council, who had green-lit a Cultural Heritage Landscape Conservation Plan for the course, which was designed by golf legend Jack Nicklaus. The intention by Clublink is to demolish the course and construct residential buildings at the property, including multiple apartment buildings, but the town has expressed opposition to this plan.
“[T]here is nothing in theOHA or otherwise in provincial legislation and policy that empowers a municipality to require a private business — whether it is a cemetery, a farm, or a golf course — to keep running as a business. The Conservation Plan for Glen Abbey stands alone in that regard,” said the ruling.
“For the Impugned By-laws to ignore the economic impact on the property owner, and to effectively require a property owner not only to maintain its property but to stay in business, all for the benefit of other residents of the Town, is to reflect bad faith decision-making. And the community-spirited intentions of Town officials and council in enacting these measures provide no defense.”
The owners had presented multiple issues with the bylaws to the court.
“Clublink submits that the Impugned By-laws areultra vires the Town and are in conflict with provincial legislation that prohibits the enactment of by-laws addressing services and other things related to recreation and culture. Secondly, Clublink submits that the Town’s conscious disregard of the financial consequences of the Impugned by-laws, and the singling out of Glen Abbey in the enforcement of the Impugned By-laws, reflect the Town’s bad faith in enacting them,” said the ruling. “Thirdly, it is Clublink’s position that enactment of by-laws aimed specifically at its property, but drafted in general rather than specific language, has resulted in them being vague and unintelligible.”
Leo Longo, a senior partner at Aird and Berlis LLP in Toronto and certified specialist in municipal law, says it’s clear that the judge “felt that he had a pretty compelling case presented by Clublink that the city fell afoul of all three points on the challenge.”
“I think municipal lawyers would be interested in this in that Oakville lost on all three points, and they only needed to lose on one,” he says. “It’s like a trinity of bases for turning them down. One, they didn’t have the jurisdiction to do what they did, number two, they did it in bad faith, and number three, what they did was vague.”
In its legal efforts, the town told the court “it is following the letter of the Ontario Heritage Act and the [Municipal Act], and is implementing a cultural heritage strategy which it is legislatively mandated to pursue,” said the ruling.
“It states that Glen Abbey is one of some 30 properties that have been identified by it as having cultural heritage value, and denies that Clublink’s property has been singled out for different or biased treatment,” said the ruling. “Counsel for the Town describes the Impugned By-laws as procedural only, and argues that they were enacted to implement in an orderly way a cultural heritage scheme over which the Town already has statutory authority.”
Jane Courtemanche, a spokeswoman for the Town of Oakville, provided an email statement on the ruling saying that the town is “reviewing the decision.”
“[The town] will seek further direction from Council early in the new year, so it would be premature for us to comment at this time.”
Longo says the ruling against Oakville shouldn’t stop other municipalities in their efforts.
“I would say to municipalities that trying to designate a [cultural heritage landscape] is something that is attainable under the Heritage Act, and Oakville just went about it incorrectly,” he says. “[I] think municipalities should not be deterred if they truly have a cultural heritage landscape to utilize those provisions.”