Maria Mavridis
Special to Niagara Now/The Lake Report

Commentary surrounding the Town of Niagara-on-the-Lake’s $1-million settlement with Hummel Properties Inc. has included claims that the developer “won on a technicality.”

As a sitting councillor, I believe it is important to correct the record and explain — clearly and factually — how we arrived at this outcome.

This is not about finger-pointing at previous councils, nor is it about assigning blame. It is also not about defending developers.

It is about understanding the facts, the court’s findings and what councils must learn moving forward to ensure decisions are made lawfully, transparently and in the best interest of residents and taxpayers.

The Ontario Court of Appeal considered Hummel Properties Inc.’s appeal challenging two interim control bylaws enacted by the town under section 38 of the Planning Act.

These bylaws temporarily halted development, including Hummel’s proposed six-unit townhouse condominium project at 2203 Niagara Stone Rd.

Concerns about uncontrolled development and the protection of Old Town’s heritage character were a central issue in the 2018 municipal election.

Shortly after the new council took office, they directed staff to prepare an interim control bylaw, which council enacted on Dec. 5, 2018.

The bylaw was later extended in 2019. Both were repealed in June 2020 following amendments to the official plan.

Hummel applied to quash the bylaws under section 273 of the Municipal Act, alleging illegality and bad faith, and sought damages for misfeasance in public office and negligent misrepresentation.

The Superior Court initially dismissed the application, finding the matter moot due to the repeal of the bylaws and concluding they were valid and not passed in bad faith.

The Ontario Court of Appeal unanimously disagreed.

First, the court held that the matter was not moot and that Hummel continues to pursue civil damages, and the legality of the bylaws is directly relevant to that claim.

The lower court erred in dismissing the case on that basis.

The Court of Appeal found the interim control bylaw was illegal because it targeted land division rather than land use.

Section 38 of the Planning Act permits interim control bylaws to temporarily freeze land uses, buildings, or structures — not subdivision or land division. Subdivision control is governed by a different part of the Act.

The town provided no legal authority supporting the use of an interim control bylaw to prohibit subdivision or condominium approvals. As a result, the bylaw was found to be enacted for an improper statutory purpose and was ultra vires — beyond the town’s legal authority.

The court found a second, independent illegality.

At the time the challenged bylaw was enacted, the Hummel lands were already subject to another interim control bylaw related to cannabis uses.

Section 38(7) of the Planning Act strictly prohibits more than one interim control bylaw from applying to the same lands within the prescribed timeframe.

The court emphasized that interim control bylaws significantly restrict property rights and therefore require strict compliance with statutory limits. The town failed to meet that standard.

The court raised serious procedural concerns regarding the Dec. 5, 2018 special council meeting.

The meeting was called with one day’s notice, despite the town’s own procedural bylaw requiring earlier notice unless an emergency exists.

The court found that the lower court’s acceptance of an “emergency” was inadequately analyzed and did not sufficiently address transparency or open-meeting principles established by the Supreme Court of Canada.

Finally, the court set aside the finding that the town had not acted in bad faith. Because the earlier findings relied on incorrect conclusions about mootness, legality and process, the issue of bad faith remains unresolved and must now be determined at trial.

As a result, the Court of Appeal allowed the appeal, quashed the interim control bylaws as illegal, and ordered a full civil trial on Hummel’s claims, including negligent misrepresentation, misfeasance in public office, the legality of the enactment process, and whether the town acted in bad faith.

Costs of the appeal were awarded to Hummel.

This was not a technicality. It was a substantive and unanimous ruling identifying multiple legal failures.

I have also heard from residents asking why this term of council has held a significant number of closed session meetings. The answer is straightforward and grounded in law.

When council is dealing with active or potential litigation, the Municipal Act requires those discussions to occur in closed session.

This protects the town’s legal position and ensures that confidential details are not disclosed to parties who are suing the municipality.

Once a legal matter is resolved, council has committed to sharing the outcome, including financial implications, with the public.

Transparency does not disappear because a matter is discussed in closed session — it is deferred until it is legally appropriate to disclose.

Importantly, how council arrived at the final settlement in this case is publicly available. The procedural steps, reports and decisions leading to that outcome can be found online for anyone who wishes to review them.

There is an important lesson here for all councils — past, present and future.

When considering significant planning tools such as interim control bylaws, councils must always obtain clear legal opinions in advance and, critically, listen to that advice.

It is worth noting that during the previous term, some councillors did raise questions with staff and council about the legality of the actions being contemplated.

Understanding how we arrived at this outcome is essential to ensuring it is not repeated.

Transparency, lawful decision-making and respect for the limits of municipal authority protect not only the town, but also the residents who ultimately bear the financial consequences.

Maria Mavridis is a councillor for the Town of Niagara-on-the-Lake.