Marion Community Homes Corp. v. Kingston (City), [1999] O.T.C. 193 (SupCt)

• Judge: MacLeod, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: December 23, 1999
• Jurisdiction: Ontario
• Citations: [1999] O.T.C. 193 (SupCt)

Marion Com. Homes Corp. v. Kingston, [1999] O.T.C. 193 (SupCt)

MLB headnote and full text

Temp. Cite: [2000] O.T.C. TBEd. JA.026

Marion Community Homes Corporation (plaintiff) v. The Corporation of the City of Kingston (defendant)

(Court File No. 11460/97)

Indexed As: Marion Community Homes Corp. v. Kingston (City)

Court of Ontario

Superior Court of Justice

MacLeod, J.

December 23, 1999 and April 12, 2000.

Summary:

Marion Community Homes Corp. (Marion) operated a 49 unit apartment building in the Township of Kingston. The Township did not collect garbage from multi-unit residential premises. The Township required in its site plan guidelines, approved by council in 1983, that the building's garbage be collected by a private contractor. In 1991, the Township enacted bylaws imposing a garbage tax on all residential properties for once-weekly collection of garbage together with a recycling program. Marion paid the garbage tax ($7,278/year), but still paid for the private contractor to collect its garbage ($2,000/year). The Township refused to grant Marion a reassessment or an exemption and required it to pay the full garbage tax rate. In 1998, the Township was dissolved and became part of the City of Kingston. The old City of Kingston had a bylaw that allowed a tax rebate for certain classes of property owners that did not use the City's garbage collection services. Marion claimed that the site plan guidelines required it to use private garbage collection. It sued for a declaration that it was entitled to either a full or partial exemption from the garbage tax retroactive to 1991. It also sought a declaration that it qualified for the garbage tax rebate program.

The Ontario Superior Court held that the site plan guidelines were a statement of general principles to guide the site plan process and did not impose a mandatory condition that Marion use private garbage collection. The garbage tax bylaw was a proper exercise of the Township's authority and the Township was not required to exempt Marion from the tax. However the Township's council breached the rules of natural justice and procedural fairness and acted in bad faith when it failed to provide Marion with a full opportunity to be heard when the council considered its exemption request. The Township had authority to impose conditions for municipal garbage collection and the form of the standard agreement used by the Township was within that authority. Marion was not eligible to apply for the garbage tax rebate program maintained under the bylaws of the old City of Kingston because it only applied to the geographic area of the old City. Marion was not entitled to any mandatory or declaratory orders. However, Marion was entitled to damages for the breach of procedural fairness. The court determined damages. The court subsequently issued supplementary reasons respecting the judgment amount, prejudgment interest and costs (see paragraphs 56 to 73).

Administrative Law - Topic 2670

Natural justice - Denial - Remedies - Damages - See paragraphs 51 to 54.

Land Regulation - Topic 3345

Land use control - Official or development plans - Effect of - See paragraphs 6 to 11.

Land Regulation - Topic 3348

Land use control - Official or development plans - Site plan agreements - See paragraphs 6 to 11.

Municipal Law - Topic 373

Councils - Meetings - Procedure - Recording of proceedings - See paragraphs 21 to 27.

Municipal Law - Topic 386

Councils - Meetings - Public hearings - Reasonable opportunity to be heard - See paragraphs 21 to 27, 51 to 54.

Municipal Law - Topic 428

Councils - Decisions of - Duty of fairness - See paragraphs 21 to 27, 51 to 54.

Municipal Law - Topic 1704

Liability of municipalities - General and definitions - Bad faith - See paragraphs 21 to 27, 51 to 54.

Municipal Law - Topic 2105.1

Municipal taxation or levies - General - Discounts, exemptions, rebates or cancellation of taxes - See paragraph 12 to 27.

Municipal Law - Topic 2106

Municipal taxation or levies - General - Authority for - See paragraph 12 to 20.

Municipal Law - Topic 2109

Municipal taxation or levies - General - Discrimination - See paragraph 12 to 20.

Municipal Law - Topic 3761

Bylaws - Scope of - General - See paragraph 34.

Municipal Law - Topic 3768

Bylaws - Scope of - Garbage collection bylaw - See paragraphs 28 to 36.

Municipal Law - Topic 8401

Amalgamation - General - Effect of - See paragraphs 37 to 42.

Practice - Topic 7025

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Failure to agree or use less expensive procedure - See paragraphs 63 to 65.

Cases Noticed:

Howard v. Toronto (City), [1928] 1 D.L.R. 952; 61 O.L.R. 563 (C.A.), refd to. [paras. 15, 35].

Ontario (Attorney General) v. Mississauga (City) (1981), 33 O.R.(2d) 395 (C.A.), refd to. [para. 18].

Mills v. Hamilton (City) (1904), 9 O.W.R. 731 (H.C.), refd to. [para. 18].

Zivkovic v. Kitchener (City) (1999), 92 O.T.C. 321 (Gen. Div.), refd to. [para. 22].

Old St. Boniface Residents Association Inc. v. Winnipeg (City) et al., [1990] 3 S.C.R. 1170; 116 N.R. 46; 69 Man.R.(2d) 134, refd to. [para. 24].

Mariano v. Mississauga (City) (1992), 55 O.A.C. 68; 8 O.R.(3d) 657 (Div. Ct.), refd to. [para. 24].

122-124 Avenue Road Holdings Inc. v. Toronto (City) (1991), 8 M.P.L.R.(2d) 150 (Ont. Gen. Div.), refd to. [para. 34].

Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; 163 N.R. 81; 41 B.C.A.C. 81; 66 W.A.C. 81; 110 D.L.R.(4th) 1, refd to. [para. 35].

Karavos v. Toronto (City), [1948] O.W.N. 17 (C.A.), refd to. [para. 45].

Oakville Storage and Forwarders Ltd. v. Canadian National Railway Co. - see Armak Chemicals Ltd. v. Canadian National Railway Co.

Armak Chemicals Ltd. v. Canadian National Railway Co. (1991), 52 O.A.C. 188; 5 O.R.(3d) 1 (C.A.), refd to. [para. 71].

Skye v. Matthews et al. (1996), 87 O.A.C. 381; 47 C.P.C.(3d) 222 (C.A.), refd to. [para. 71].

Statutes Noticed:

Municipal Act, R.S.O. 1990, c. M-45, sect. 210(83) [para. 28].

Counsel:

John F. Scheulderman, for the plaintiff;

Timothy J. Wilkin, for the defendant.

MacLeod, J., of the Ontario Superior Court, heard this matter on November 1-3, 8-10, 12, 16 and 18, 1999, and delivered judgment on December 23, 1999, and supplementary reasons on April 12, 2000.

Please note: The following judgment has not been edited.