Towns lawyers legal opinion on site remediation agreement


Buried at the end of the minutes of the May 12th 2014 council meeting,was the following legal opinion from Leo Longo the towns solicitor, on the ACP site remediation agreement. Chadwick should be well aware of this letter and its contents.
In Chadwick’s blog post published on the subject over the weekend (available on my VFAN Facebook site) he stated:

“While the onus for enforcement unfortunately falls to the town under its property standards bylaw (section five), the town is given the discretion when and even whether to enforce it (section four). Any enforcement would be a costly legal challenge and a lengthy court battle for taxpayers. Potentially several years.”

I suggest that yet again Chadwick is being deliberately obtuse in the hopes that the general public do not read most of the information related to this situation. Which most of us do not.

There are lots of ways to enforce a legally binding agreement when one party has reneged on it (which Assaff has). None of these options below involve a “costly legal challenge” they involve the towns lawyer filing some paperwork and giving Assaff 3 months to fulfill his obligations to the agreement that he willfully signed 3 years ago. Like dealing with anyone else in town they would then contract out the filling of the hole and landscaping and a lien would be filed against the property by the town for the cost.

April 22, 2014 File No. 92197

VIA EMAIL: salmas(a collingwood.ca)

Mayor and Members of Council
Town of Collingwood
97 Hurontario Street
Collingwood, ON L9Y 3Z5

Attention: Sara Almas, Clerk
Dear Madam Mayor and Council Members:
Re: Site Remediation Agreement
Hurontario/Hume Streets

The purpose of this letter is to provide you with our opinion respecting the Site Remediation Agreement (“SRA”) entered into between the Town and Admiral Collingwood Development Corporation (“ACDC” and “Assaff”) and Admiral Village Inc. (“AVI” and “Strandholt”). I will be attending the council meeting of April 28, 2014 to present this opinion and answer any questions that you may have respecting it.
The SRA contains a clear and unequivocal obligation on both ACDC and AVI to remediate, fill, grade and landscape their respective sites should excavation have occurred but development not commenced on their sites by April 30, 2014; see sections 1 and 2 attached. This obligation can be enforced in a number of ways.
Like any contract, the SRA can be enforced by commencing an “action” with a statement of claim seeking specific performance of the obligation to remediate, fill, grade and landscape.

A more expeditious route would be to file an “application” pursuant to Rule 14.05 of the Rules of Civil Procedure. Subsection 14.05(3)(d) allows an applicant to seek the interpretation of a municipal agreement:
“A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is, (d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;…”
Subclause (g) permits the court to also make any declaration and/or mandatory order ancillary and incidental to such interpretation:
(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application.
Accordingly, the Town could apply to the court to obtain an interpretation of the landowowners obligations under the SRA, a declaration that the time has now come for those obligations to be fulfilled; and a mandatory order requiring the fulfillment of the obligations, failing which one would be in contempt of court.
Section 5 of the SRA contains additional alternative enforcement provisions:
ENFORCEMENT
Should ACDC and/or AVI respectively fail to remediate and fill in the existing excavation of their respective Lands and grade and landscape such Lands [all to the Town”s satisfaction and their respective sole cost and expense] within three months as required in Sections 1 and 2 above, the Town shall commence proceedings under its Property Standards By-Law to secure such an outcome.

ACDC and AVI acknowledge that the Town, in addition to any other remedy it may have at law, shall also be entitled to enforce this Agreement in accordance with section 446 of the Municipal Act, 2001, S.O. 2001, c. 25, and amendments thereto.

Pursuant to this latter enforcement mechanism, as of May 1, 2014, the Town is entitled to enter upon the site and undertake the filling and grading required pursuant to the agreement. All costs associated with the exercise of that self-help remedy may be added to the tax rolls and collected in like manner as taxes; see s. 446 attached.
As noted above, the SRA speaks to the Town also utilizing, in addition to the above remedies, its Property Standards By-law to address certain situations arising from an abandoned construction site. That By-law establishes many standards that potentially could be applicable in this situation. I note, however, that the Property Standards By-law has no expressed standard that would require that an excavation hole be filled… such a hole simply needs to be drained and maintained to prevent recurring ponding.
If this enforcement mechanism is chosen, the usual Property Standards By-law enforcement process would be followed; i.e., infraction notices would be provided to the owner with a right to appeal to the Town and Property Standards Appeal Committee.
This letter outlines the potential enforcement avenues available to the Town, as of May 1,
2014, in dealing with the ACDC and AVI sites in their current conditions.
The Town retains its discretion to decide whether and when to utilize any of the above enforcement mechanisms.
Other non-litigious courses of action may exist to remediate the current situation than through the enforcement mechanisms discussed above.
AIRD and BERLIS LLp
Barristers and Solicitors 92 of 96
April 22, 2014
Page 3
I would be happy to provide any further information or clarification respecting this opinion.
Yours truly,

AIRD and BERLIS LLP

Leo F. Longo

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