Rainer Hummel's offices, St. Davids. VOICE FILE

Ontario’s highest court rules that Rainer Hummel’s lawsuit against Niagara-on-the-Lake be litigated afresh

Back in December 2018, barely 48 hours after then-newly elected Lord Mayor Betty Disero took office, Niagara-on-the-Lake’s Town Council passed an interim control bylaw that froze all development in Old Town for one year.

Layered on top of another interim control bylaw also related to land-use, the Disero-led council later extended the restriction another year, before finally repealing it at the end of June 2020.

With projects in the works affected by the lengthy restriction, as well as concerns over the precedent-setting overreach and alleged illegality of the bylaw, NOTL developer Rainer Hummel sued the Town of Niagara-on-the-Lake for $500,000, plus costs, alleging an “insidious scheme” on the part of Lord Mayor Disero.

St. Catharines provincial court judge Justice James Ramsay dismissed the suit in April 2021, claiming it struck him, in part, as “contrived.” Ramsay alleged council was just doing “essentially what they were supposed to do.”

Hummel immediately appealed Ramsay’s decision.

The result of that appeal was finally publicized last Friday as Ontario’s highest court unanimously rejected Justice Ramsay’s decision and ordered the case be returned to Superior Court for trial and that Hummel’s legal expenses be covered by the municipality. Only 30 percent such cases typically get overturned.

The higher court justices were highly critical of Ramsay’s deliberations, disagreeing with the judge on effectively every issue.

The ruling, written by Justice Peter Lauwers, with Justices Ian Nordheimer and Benjamin Zarnett assenting, cited several legal errors.

“I have found that the application judge made three overriding legal errors in his brief six-page endorsement,” wrote Lauwers. “First, the legality issue was not moot; second, the interim control by-law was illegal because it did not relate to “land use” as required by s. 38 of the Planning Act; and third, that the by-law was illegal under s. 38(7) of the Act because another interim control by-law affecting the Hummel land was in force. I have also found that the application judge did not adequately analyze whether the process leading to the by-law’s enactment was legal.”

I have also found that the application judge did not adequately analyze whether the process leading to the by-law’s enactment was legal

“The application judge’s finding that there was no bad faith rested on these three errors, and on his inadequate analysis of the process leading to the by-law’s enactment,” continued the higher court judge. “Accordingly, I would set aside that finding.”

As part of its ruling, the Court of Appeal determined that interim control bylaws cannot be used to prohibit land division, and that more than one interim control bylaw cannot simultaneously apply to the same piece of land. It is the first time a Canadian appellate court has squarely addressed these issues.

In a press statement, Hummel Properties said it has consistently maintained that its challenge to the Town’s installment and extension of the bylaw was not only necessary to protect its own interests but was also in the public interest.

“The community as a whole and each individual taxpayer in this Town deserves more from its elected representatives. These are the individuals in whom the public places a special trust. That trust must be honoured. It must not be breached,” said Hummel, President of Hummel Properties. “It was never our intent to burden the Town’s taxpayers, although cost is an unfortunate side effect of litigation. Rather, our intention was to protect our interests and the public interest, and to right an egregious wrong committed by the former council.”

What remains is the question of if members of the former council can be held personally liable for their actions, as the protection afforded to them against civil litigation does not apply to illegal acts.

Betty Disero was ousted in October’s municipal election, falling to Lord Mayor-elect Gary Zalepa by 15 points.

“In righting that wrong, we hope to send a clear message to the new council, and to other municipal councils, that in carrying out their important legislative mandate, they must ensure that they act lawfully, and that they govern themselves at all times within the principles of transparency, accountability and good faith,” concluded Hummel.

Hummel intends to “push very hard” to have the trial complete within the next 12 months.

In 2017, Hummel blew the whistle on a land-for-credits scheme in Pelham undertaken by then-Mayor David Augustyn and his town council, none of whose members have held political office since.

 

With files by The Niagara Independent.