Canada's top court dismisses city of Ottawa's application to appeal Kanata golf course ruling

Residents living in Kanata Lakes promise the fight to protect the Kanata Golf and Country Club from development is "far from over", despite Canada's highest court not hearing the city of Ottawa's appeal on an agreement protecting the land from a housing development.

The Supreme Court of Canada dismissed the city of Ottawa's application for leave to appeal the Ontario Court of Appeal's decision to strike down parts of an agreement that protected the golf course and allowed ClubLink to proceed with the development.

The Supreme Court did not provide any reason for its decision not to hear the city's appeal.

In November, Ontario's top court ruled ClubLink has the right to build a housing development on the land, reversing a lower court ruling that would have banned the company from building a new subdivision on the site and protecting the golf course and greenspace.

The legal dispute involves the so-called '40 per cent agreement,' the 1981 agreement signed between the then-city of Kanata and developers stating at least 40 per cent of the property must be kept as green space.

"It's certainly frustrating. We felt that it needed to be looked at by the Supreme Court," Coun. Cathy Curry told Newstalk 580 CFRA's Ottawa Now with Kristy Cameron.  "I've continually said it's not about golf, it's not even about Kanata Lakes, it's about agreements and long-term land agreements in particular.

"They decided not to look at it; however, it's not the end of the road for all of us at all."

The Kanata Greenspace Protection Coalition says it is disappointed, but not surprised the high court will not hear the case.

"We understand that the City of Ottawa leadership had serious concerns about the impact of the Court of Appeal decision on a plethora of agreements both in place and in progress," KGPC Chair Barbara Ramsay said.

"They have been very good partners for the KGPC in this fight to preserve urban greenspace and so, today, we’re particularly disappointed for them. However, we continue to engage our legal team in managing a full slate of legal options in this fight and we will now buckle down to ready for our next step, a return to Superior Court on September 13 and 14."

In October, 2019, ClubLink formally applied to the city to build more homes on the golf course lands. ClubLink and its developers, Minto Communities and Richcraft Homes, promised a new community of more than 1,500 homes with a minimum 25 per cent greenspace.

In February, 2021, an Ontario Superior Court Justice ruled the '40 per cent agreement' between ClubLink and the city "continues to be a valid and binding contract." However, the Ontario Court of Appeal said the agreement was important, but not an ironclad protection of green space forever.

"The owners have operated the golf course for more than 21 years," the ruling said. "Neither the City’s right to a conveyance nor ClubLink’s right to a reconveyance have vested within the perpetuity period. As a result, these contingent interests in the golf course lands are now void."

City Solicitor David White said in November that the Ontario Court of Appeal's ruling means the city would no longer have a right to demand reconveyance of the land if ClubLink stops operating the golf course.

"However, the Court did not invalidate any other sections of the 40% Agreement (as requested by ClubLink), or any other agreement relating to the golf course."

White told council in November that pending further rulings:

• ClubLink still has an obligation to operate the golf course in perpetuity (section 5(1) of the 40% Percent Agreement).
• The City still has a right of first refusal if ClubLink tries to sell the golf course (section 5(3) of the 40% Percent Agreement).
• If ClubLink does sell the golf course, it must ensure that the new owner enters into an agreement to preserve the golf course in perpetuity

NEXT STEPS

The Kanata Greenspace Protection Coalition notes the Court of Appeal invited the city and ClubLink to discuss what impact the invalid clauses, struck down by the court, would have on the 40 per cent agreement.  The city and ClubLink will appear before Ontario Superior Court Justice Marc Labrosse next month to look at the future of the remaining clauses of the agreement and whether the contract protects the land from development.

"Today, the Supreme Court of Canada denied leave on the City’s appeal in relation to the matter with ClubLink. In accordance with the court’s practice, reasons for their determinations were not provided," Acting City Solicitor Tim Marc said in a statement to CTV News Ottawa.

"While the Ontario Court of Appeal did strike clauses 5(4) and 9 from the original agreement, concerning the obligation to convey the golf course to the City if it were to no longer operate, the status of the balance of the agreement was remitted to Mr. Justice Labrosse."

The KGPC is also taking ClubLink to court over two "Restrictive Covenants" that limit how the land can be used.

"The fight is far from over," KGPC lawyer Alyssa Tomkins, partner at Gowling WLG, said. "Though the Supreme Court has refused leave to appeal, the matter is still proceeding before Justice Labrosse. We trust that the remainder of the 40% Agreement will be preserved by the court."

With files from CTV News Ottawa's Michael Woods