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Appeals - Transfers (2). Waring’s Creek Improvement Association v. The Corporation of the County of Prince Edward et al.
In Waring’s Creek Improvement Association v. The Corporation of the County of Prince Edward et al. (Div Ct, 2026) the Divisional Court dismissed a CJA s.110 court transfer motion, here seeking "an order transferring its application to quash two municipal by-laws relating to a zoning by-law amendment and a draft plan of subdivision approval from the Divisional Court to the Superior Court":[4] For the reasons that follow, the motion is dismissed. This application lacks merit because the illegality is purely procedural in nature. There is no substantive illegality to the by-laws adopted by the County and as such, I exercise my discretion to deny the transfer request and allow the provisions of s. 273(5) of the Municipal Act, 2001 to cure the purported illegality.
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[8] Waring’s commenced an application on February 6, 2026, seeking to quash the by-laws under s. 273 of the Municipal Act, 2001. This was a few days before the one-year limitation period to commence an application to quash a by-law under s. 273 of the Municipal Act, 2001 was to expire.
[9] That application was brought in the Divisional Court, notwithstanding that s. 273 applications are to be brought in the Superior Court of Justice. The present motion seeks to correct that error by transferring the application from the Divisional Court to the Superior Court of Justice.
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[10] The sole issue is if the Court exercise its discretion under s. 110 of the Courts of Justice Act to transfer this proceeding to the Superior Court of Justice.
Applicable Law
[11] Section 110(1) of the Courts of Justice Act provides:110 (1) Where a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer. [12] The language is permissive, not mandatory.
[13] In Alexandrov v. Csanyi, 2009 CanLII 10665 (ON SCDC) at para 9, the Superior Court described that s. 110 is a remedial provision which preserves the rights of litigants who may have lost them due to the lapse of limitation periods or other time deadlines by reason of having taken proceedings in a court without jurisdiction.
[14] The parties agree that the applicable test as confirmed by the Court of Appeal for Ontario in 1579959 Ontario Inc. v. Sheikh, 2025 ONCA 688 at para 13, requires that the court consider:i. the merits of the proposed proceeding;
ii. whether the respondent will suffer undue prejudice as a result of further delay while the application is waiting to be heard; and
iii. whether the moving party acted expeditiously once it became aware that jurisdiction was in dispute. Analysis
[15] Section 110 of the CJA confers a broad procedural discretion, not an entitlement to transfer. The mere fact that a proceeding is brought in the wrong court does not require its preservation. The Court must determine whether the transfer serves the interests of justice.
The Merits
[16] The merits inquiry is described as a “gatekeeping” function. There is no dispute that the law on the merits directs that this is not a high threshold: see 1579959 Ontario Inc. at para. 14. However, even a low threshold requires some legal basis.
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[20] As set out in Larabie Estate v. Moonbeam (Township), 2022 ONCA 904, para. 16, the authority to invalidate a by-law under s. 273 of the Municipal Act, 2002, is discretionary and the following factors are relevant to the exercise of that discretion:i. The nature of the by-law in question;
ii. The seriousness of the illegality alleged;
iii. The consequences of the illegality alleged. [21] While these are not the criteria upon which this motion to transfer is to be decided, these factors are instructive when considering if the discretion should be exercised to allow the transfer to ensure that the application has merit.
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[24] Following that analysis, the judge who ultimately hears this appeal will be faced with the following issues:i. Nature of the By-law: The by-law in question is an approval of a development project where only the approval authority and the applicant have standing. But for the appeal to the OLT, the by-laws are clearly within the jurisdiction of the County. The by-laws have no application of a general nature and those who were interested had a right to be heard and they were heard. In this case, the Applicant Waring’s lobbied for the changes that were made in February 2025 and those changes gave Waring’s a right of consultation. The issue raised by Waring’s at this stage is with the implementation of the conditions by the County and its staff. The by-laws did not curtail or limit participation or transparency with the public approval process.
ii. Seriousness of the Illegality: On this point, the illegality is purely procedural. While I appreciate that a Settlement Hearing to approve the amended conditions before the OLT may have allowed Waring’s to be heard at the OLT if they had they received participation rights, they had the same opportunity at the County level. It is purely a question of which entity had the authority to approve the by-laws. In the normal course, the by-laws fall squarely under the County’s authority. In this case, nothing precludes the County from repeating the same public process that was done on February 11, 2025, and approve the by-laws once again. There is no evidence that anyone at the County is reconsidering its approval of the by-law. The illegality is purely procedural and would only serve to correct an oversight in the proper approval route. There is no substantive wrong to be cured.
iii. Consequences of the illegality: Here, there is no practical consequence. A declaration by a court of illegality would simply cause for the County to readopt the by-law as it now has the jurisdiction to do so. In addition, there is already a curing provision under s. 273 of the Municipal Act, 2001, whereby the illegality is cured if the one-year limitation period in s. 273 passes. But for this Application, the by-law would remain in effect and there would be no consequences of the illegality. At that point, the illegality becomes moot. [25] Although I am not deciding the application under s. 273 at this stage, the above analysis has an important impact on the assessment of the merits of the proposed application. Essentially, there is no substantive merit, only technical merit based on the correct authority to approve the by-laws. There is no purpose in moving forward with the application for illegality when the result will simply be for the approval process to be undertaken a second time.
[26] In London (City) v. RSJ Holdings Inc., 2007 SCC 29 (CanLII), the Supreme Court of Canada highlighted that the discretion under s. 273 of the Municipal Act, 2001 is to be exercised judicially. Where there is a total absence of jurisdiction, a court acting judicially will quash the by-law. In the normal case, the adoption of a zoning by-law and the conditions for subdivision approval fall squarely within the jurisdiction of the County. However, in RSJ Holdings, that was also the case for the adoption of an interim control by-law. In that case, it was a failure to comply with a statutory procedural requirement of conducting the discussion on an interim control by-law in an open public session. In that case, the issue was discussed in camera.
[27] The circumstances in RSJ Holdings are distinguishable. It was a substantive requirement that the discussion on the interim control by-law occurs during a public meeting and not in camera. This was not purely procedural. There was an important substantive element to the decision-making process to ensure transparency and accountability. In the present case, this is not a total absence of jurisdiction. The jurisdiction is entirely present and rests with the County. The issue lies with a flawed approval process.
[28] Of note, there is no evidence before me that the alleged defect caused substantive harm or that any outcome would differ if proper procedure had been followed or will be followed. The issues of transparency and accountability do not come in play and the Applicant simply wants another opportunity to argue what it has already argued before the County Council. This supports the conclusion that the application is weak on its merits.
Prejudice
[29] The court also considers that the development project is already well under way. To allow the application to move forward may risk causing further delay to the project as the approval will now be in doubt. There is no purpose to wait for a decision on the s. 273 application and then cause 242 Ltd. and the County to return through the approval process to approve a new by-law. There is also risk that the need to recommence the approval process will this have an impact on the financing or bonding for the development. I also accept that it may impact the ability to continue with the construction pending the corrected approval process.
[30] At this level, there is a risk to the Respondent 242 Ltd. if the status of the project and its approvals are put into doubt over a mere technicality in the approval process.
[31] The alternative is to allow the one-year limitation period in s. 273(5) to take effect and allow the illegality to be cured. That is the purpose of s. 273(5) to allow parties to move forward when County Council took a legitimate decision to approve the by-law in question and the approval has already been acted upon. Once again, the procedural illegality is properly cured by the one-year limitation period. That is the purpose of s. 273(5).
[32] As such, I accept that there is potential for prejudice to 242 Ltd. and that this favours the refusal of the motion to transfer.
Timeliness
[33] Finally, it is clear that from the standpoint of the transfer motion, the Applicant proceeded expeditiously with the motion to transfer. I do not share the view of 242 Ltd. that the Applicant can be faulted for bringing the application just a few days prior to the end of the one-year limitation period. The Applicant has clearly met this criterion and should be congratulated for trying to work with the County within the February 2025 approvals.
[34] However, it does not appear that the Applicant was fully transparent with its objection to the by-laws. It is clear that the Applicant was working within the confines of the February 2025 by-laws. It was lobbying the County to enforce the conditions as approved by County Council. Had the Applicant been clearer as to its objection to the by-law, the County may have acted sooner to recommence the approval process.
[35] Regardless, the timeliness of the motion to transfer favours granting the requested relief.
Conclusion
[36] In the end, my assessment of the transfer motion is that it fails at the merits level given that the illegality is purely technical and serves no purpose. It also fails as the prejudice level as the approval process can be undertaken again and would only serve to create doubt and possible delay and/or prejudice to the development project. This project has moved forward in good faith with the blessing of the County which would normally approve the Applications. There are no consequences from this illegality in a matter that is personal in nature between 242 Ltd. and the County. The matter has already gone through the public consultation process and Waring’s has been heard and its concerns have been addressed. It continues to be open to Waring’s to lobby County Council if the subdivision conditions are not properly implemented. There is no purpose served by requiring the approval process to be undertaken a second time when there is no evidence that the outcome could possibly be any different.
[37] For these reasons, the motion to transfer is dismissed. ....
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