Executive Summary: Key Legal and Evidentiary Issues

• Determination of whether the application to quash the by-law is moot due to the substantial completion of the construction project.

• Assessment of the existence of a live controversy between the parties regarding the by-law’s ongoing impact on Global’s property rights.

• Consideration of whether the application should be converted to an action to allow for expert testimony and resolution of alleged complex factual disputes.

• Evaluation of whether the issues raised are legal and suitable for resolution on a written record, or if they require a full trial.

• Analysis of the City’s alleged bad faith in passing the by-law and whether this claim is substantiated.

• Application of judicial economy and proportionality principles in deciding the appropriate procedural route.

Factual background

Global Waste Disposal London Ltd. owns property at 2040 River Road in London, Ontario. In 2021, Global initiated a site plan application to expand its operations, including constructing a waste transfer facility. To facilitate this, Global sought to connect to a municipal storm sewer that required traversing environmentally sensitive land. On May 16, 2023, the City of London passed By-law No. S-6225-109, which extended Scanlan Street and included the extension of watermain and storm sewer systems. The construction project was substantially completed in November 2024, pending final approval.

Global challenged the by-law, arguing it was unreasonable, arbitrary, and lacked the fairness, openness, and impartiality required of municipal governance. It also alleged the City acted in bad faith. The City acknowledged that if the by-law were quashed, the previous by-law would be reinstated, reverting the parties to the pre-2023 status quo.

Procedural history and positions of the parties

Global filed its application to quash the by-law under section 273(1) of the Municipal Act, 2001. The City responded with a motion to dismiss the application on the grounds that it was moot, given the substantial completion of the Scanlan Street project. Alternatively, the City sought to convert the application into an action, arguing that expert evidence and a trial were necessary due to the complexity of the issues. Global maintained that the by-law continued to affect its ability to expand its facility, presenting a live controversy suitable for determination by application, not action.

Legal issues and analysis

The primary issues before the court were (1) whether the application was moot, and (2) whether it should be converted to an action. The court applied the Supreme Court of Canada’s test for mootness, focusing on whether a live controversy existed and whether the court should exercise its discretion to hear the matter. The City argued that the matter was academic due to the passage of time and the completion of the construction project, but the court found that ongoing negotiations and the unresolved site plan application meant a live controversy persisted. The court also noted broader public interest considerations in ensuring municipal powers are exercised lawfully and in good faith.

On the second issue, the court considered the principles for converting an application to an action, including the need for a trial to resolve credibility issues or complex factual disputes. The court determined that the main issue—whether the by-law should be quashed—was straightforward and legal in nature, suitable for resolution on a written record. The court found that expert evidence was not necessary for interpreting the official plans, and that the application process was more proportionate and efficient.

Outcome and costs

Justice E. ten Cate dismissed the City’s motion in its entirety. The application to quash the by-law will proceed to a hearing on its merits. The court awarded Global partial indemnity costs of $14,000 plus disbursements of $2,877.99, for a total of $16,877.99, in favor of the successful party, Global Waste Disposal London Ltd.