Miller Paving Limited v. Kawartha Lakes (City)
The Court of Appeal upheld the application judge's discretionary refusal to quash the by-law under s.273(1) because the statute uses 'may', and in the absence of bad faith and prejudice the failure to provide formal notice did not mandate quashing the by-law.
Source-derived case information.
- Citation
- 2010 ONCA 801
- Parties
- Applicant/appellant: Miller Paving Limited; Respondent: The Corporation of the City of Kawartha Lakes; Respondent: R. W. Tomlinson
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 29 November 2010
- Procedural Posture
- Civil / Appeal From Superior Court of Justice Order Refusing to Quash by Law (motion Judge: Mulligan J., April 30, 2010)
- Outcome
- Appeal dismissed.
- Legal Topics
- Quashing by Law, Municipal Notice Requirements, Judicial Discretion in Remedy
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miller Paving Limited
Applicant/appellant
The Corporation of the City of Kawartha Lakes
Respondent
R. W. Tomlinson
Respondent
Procedural Posture
Civil / Appeal From Superior Court of Justice Order Refusing to Quash by Law (motion Judge: Mulligan J., April 30, 2010)
Legal Issues
- 1 Whether the Superior Court should exercise its discretion under s.273(1) of the Municipal Act to quash a municipal by-law for failure to give statutory notice
- 2 Whether failure to provide statutory notice automatically requires quashing of a by-law
- 3 Whether the absence of bad faith or prejudice precludes relief
Ratio Decidendi
The Court of Appeal upheld the application judge's discretionary refusal to quash the by-law under s.273(1) because the statute uses 'may', and in the absence of bad faith and prejudice the failure to provide formal notice did not mandate quashing the by-law.
Court Disposition
Appeal dismissed.
Orders
- Appeal dismissed.
- Order of Mulligan J. dated April 30, 2010 refusing to quash the by-law is upheld.
Full Case Text
Judgment text and source record
1 paragraphs
Miller Paving Limited v. Kawartha Lakes (City) Collection Decisions of the Court of Appeal Date 2010-11-29 Neutral citation 2010 ONCA 801 Docket numbers C52180 Judges MacPherson, James C.; Gillese, Eileen E.; Juriansz, Russell G. Subject Civil Decision Content CITATION: Miller Paving Limited v. Kawartha Lakes (City), 2010 ONCA 801 DATE: 20101129 DOCKET: C52180 COURT OF APPEAL FOR ONTARIO MacPherson, Gillese and Juriansz JJ.A. BETWEEN Miller Paving Limited Applicants/Appellants and The Corporation of the City of Kawartha Lakes and R.W. Tomlinson Respondents/Respondents in Appeal M. John Ewart and P. Kourtney O’Dwyer, for the appellants Miller Paving Limited Keith MacLaren, for the respondent R. W. Tomlinson Michael Miller, for the respondent Corporation of the City of Kawartha Lakes Heard and released orally: November 24, 2010 On appeal from the order of Justice Gregory M. Mulligan of the Superior Court of Justice dated April 30, 2010. ENDORSEMENT [1] The appellant Miller Paving Limited appeals the decision of Mulligan J. of the Superior Court of Justice dated April 30, 2010 declining to exercise his discretion to quash one of the respondent corporation’s by-laws because the municipality failed to provide proper notification to the appellant that the by-law had been passed. [2] We see no basis for interfering with the application judge’s exercise of discretion in this matter. Section 273(1) of the Municipal Act, S.O. 2001, c. 25, provides: 273(1) Upon the application of any person, the Superior Court of Justice may quash a by-law of a municipality in whole or in part for illegality. [3] The use of the word “may” creates a discretion, not a requirement, that a superior court judge may quash a by-law for illegality. [4] The application judge carefully reviewed the circumstances giving rise to the municipality’s failure to comply with a statutory obligation to provide notice to the appellant that a by-law affecting the appellant has been passed. He concluded that there was no bad faith on the part of the municipality giving rise to this omission. Moreover, he also found that the appellant was not prejudiced by the lack of a formal notice from the municipality. In light of these two factors, the application judge declined to quash the by-law. We can see no error in his reasoning or disposition. [5] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $10,000 each inclusive of disbursements and applicable taxes. “J. C. MacPherson J.A.” “E. E. Gillese J.A.” “R. G. Juriansz J.A.”