Friends of Eden Mills Inc. v. Eramosa (Township), (1998) 111 O.A.C. 81 (DC)

• Judge: Farley, Chapnik and Morin, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: June 19, 1998
• Jurisdiction: Ontario
• Citations: (1998), 111 O.A.C. 81 (DC)

Eden Mills Inc. v. Eramosa (1998), 111 O.A.C. 81 (DC)

MLB headnote and full text

Temp. Cite: [1998] O.A.C. TBEd. JN.008

The Friends of Eden Mills Inc. (applicant) v. The Corporation of the Township of Eramosa (respondent)

(V1051/98)

Indexed As: Friends of Eden Mills Inc. v. Eramosa (Township)

Ontario Court of Justice

General Division

Divisional Court

Farley, Chapnik and Morin, JJ.

June 19, 1998.

Summary:

The Eramosa Township Council resolved to de-designate a bridge as a heritage prop­erty and to demolish and replace it with a replica bridge through an allowed tendering process. The applicant applied for an order declaring the resolutions to be null and void on the basis of a failure to satisfy the requirements of ss. 31(2) and 34(1) of the Ontario Heritage Act, an order that such resolutions were in breach of s. 24(1) of the Planning Act, an order enjoining the Town­ship from demolishing the bridge until there was a full environmental assess­ment and an order requiring the Township to imme­diately repair and reopen the bridge in accor­dance with s. 284 of the Municipal Act.

The Ontario Divisional Court dismissed the application.

Land Regulation - Topic 2160

Land use control - Municipal plan - Enforcement - General - A Township's 1992 Official Plan was not approved by the Minister of Municipal Affairs until 1995 - The Ontario Divisional Court stated that it would be unduly technical to sug­gest that the Township should not be guid­ed in the interim period by what it had proposed as its Official Plan - The court noted that it would be a different thing if a third party was dealing with the hiatus situation - Here however the Township should itself be held to the higher standard it had proposed to the Ministry - See para­graph 9.

Land Regulation - Topic 2944

Land use control - Heritage protection - Designation of prop­erties (incl. de-desig­nation) - Pro­cedure - [See Munici­pal Law - Topic 3327 ].

Municipal Law - Topic 3327

Bylaws - Notice of intention to consider - Requirement of - A Township Council resolved to de-designate a bridge as a heritage property and to demolish and replace it - The applicant applied for an order requir­ing the Township to immedi­ately repair and reopen the bridge - Notice as set out in s. 300 of the Municipal Act had not been provided in advance of the closure bylaw - The Ontario Divisional Court stated that s. 300 contemplated a non-emergency situation where time was not critical - Where there was an emer­gency situation and safety was involved, as here, it was irrational to expect prior notice - Further, it appeared that s. 300 was aimed at giving persons the opportunity to be heard in relation to a claim that their land would be prejudicially affected by the bylaw, which was not the case here - See paragraph 8.

Municipal Law - Topic 6263

Actions against municipality - Restrictions - Statutory restrictions - The Eramosa Township Council resolved to de-desig­nate a bridge as a heritage property, and to demolish and replace it with a replica bridge through an allowed tendering pro­cess - The applicant applied, inter alia, for an order requiring the Township to imme­diately repair and reopen the Bowstring in accordance with s. 284 of the Municipal Act - The Ontario Divisional Court dis­missed the application - While s. 284 imposed on a municipality the obligation to maintain and repair roads, the remedy available was damages - Mandamus did not lie to compel a municipality to keep a road in repair or even to repair a road after it had fallen into disrepair - See paragraph 7.

Words and Phrases

Consult - The Ontario Divisional Court discussed the meaning of the word "con­sult" as found in s. 31(2) of the Ontario Heritage Act, R.S.O. 1990, c. O-8 - See paragraph 15.

Cases Noticed:

McGill v. Brantford (City) (1980), 28 O.R.(2d) 721 (Div. Ct.), refd to. [para. 6].

Linderkamp et al. v. Nickel Centre (Town) (1977), 3 M.P.L.R. 118 (Ont. Div. Ct.), refd to. [para. 7].

Beer v. Halton Land Division Committee (Regional Municipality) (1991), 25 O.M.B.R. 505 (Mun. Bd.), refd to. [para. 9].

Petro-Canada Products Inc. v. Oakville (Town) (1985), 17 O.M.B.R. 341 (Mun. Bd.), refd to. [para. 11].

Bele Himmell Investments Ltd. v. Mississauga (City) et al. (1982), 13 O.M.B.R. 17 (Div. Ct.), refd to. [para. 11].

Lakeland College Faculty Association and Kaai v. Lakeland College (1995), 176 A.R. 303; 35 Alta. L.R.(3d) 95 (Q.B.), refd to. [para. 15].

Westfall v. Eedy (1991), 6 O.R.(3d) 422 (Gen. Div.), refd to. [para. 15].

Roman Catholic Episcopal Corp. for the Diocese of Peterborough v. Cobourg (Town) et al. (1998), 62 O.T.C. 338 (Gen. Div.), refd to. [para. 15].

Statutes Noticed:

Municipal Act, R.S.O. 1990, c. M-45, sect. 284 [para. 7]; sect. 300, sect. 300(1)(b) [para. 8].

Ontario Heritage Act, R.S.O. 1990, c. O-8, sect. 31(2) [para. 15]; sect. 34(1) [para. 5].

Authors and Works Noticed:

Oxford Dictionary of Current English (1989), generally [para. 15].

Counsel:

George Rust-D'Eye and Sue A. Metcalfe, for the applicant;

Blake M. Kurisko, for the respondent.

This application was heard on June 11 and 12, 1998, by Farley, Chapnik and Morin, JJ., of the Ontario Divisional Court. The court delivered the following decision on June 19, 1998.