The Supreme Court of Canada recently ruled in favour of an appeal filed by the defendants following the April 2014 decision by a Supreme Court judge the Town had every right to charge the businesses for the services that were provided.
At the time, the judge said that subsection 149 (1) of the Municipalities Act gave the town the authority to charge the business owners for snowclearing, maintenance and repaving of the lot.
The judge did not accept the business owners’ argument that the town was being discriminatory in sending them a bill for the work.
“Far from being discriminatory against the defendants … I find the failure of the Town to charge the defendants as they have for the service provided would discriminate against other commercial taxpayers,” the judge stated, noting two other commercial shopping malls in Gander, paying real property and business tax to the Town and maintaining and snowclearing their parking lots, which are accessible to the public.
“I am therefore satisfied that the Town . . . has the authority to charge the defendants for the services provided as a service levy, pursuant to Section 149 (2) of the Act.”
The business owners, however, filed an appeal, and the Supreme Court of Appeal overturned the earlier ruling in late June.
Garry Brown, director of finance for the Town of Gander, told tc• Media last week, “We won initially and some of the business owners appealed the decision, so it went to the Supreme Court of Newfoundland and they decided we had no authority to charge the maintenance costs of the parking lot to the business owners.”
The Appeals court judge ruled that neither subsection 149 (1) or (2) gave the Town the authority to impose charges on the business owners for snowclearing, maintenance and paving of the parking lot.
In his ruling, Justice M. Rowe said while the town of Gander is not barred from seeking to obtain cost recovery for the snowclearing and maintenance of the parking lot in question, it cannot do so under Section 149 of the Act.
“For me the critical point is not whether the Appellants directly benefit from the provision of parking and access roadways. This they clearly do.
“For me the critical point is s. 149 (1) is a means for the municipality to recover tis capital costs for construction of infrastructure that benefits specific land owners. Here, Gander is seeking to recover maintenance costs, rather than capital costs. But s. 149 (1) is not about recovering maintenance costs; it is about recovering capital costs.”
One municipality just 90 minutes down the road was keeping a close eye on what took place in the court of appeal in the Gander case.
Back in March, The Town of Clarenville was advised by its lawyers to await the outcome in anticipation of a decision in a precedent-setting case on a similar issue in the other town.
While Clarenville had made strides toward finding a solution — even forming a special committee last fall with members of council, Shopping Centre business owners and neutral parties — all progress was stalled while they awaited the outcome in Gander.
In Clarenville, the Shopping Centre parking lot has been the topic of public discussion and debate for many years.
The lot is riddled with potholes and for many years the town and shopping centre business owners could not settle on an agreement for ownership or repairs of the lot.
The town owns the lot but wanted to transfer ownership to the Shopping Centre business owners.
An engineering report, conducted by Meridian Engineering last year, estimated the cost of repairing the Shopping Centre parking lot in Clarenville would be $2.1 million.
The town had committed $25,000 a year for a 10-year period, with assistance from the mall owners. Shopping Centre parking lot committee chair Coun. Paul Tilley indicated recently the town would recoup the costs over 20 years so there would be no cost to the residents of Clarenville.
The Town of Clarenville is now in the process of examining the Appeals court ruling to determine the implications for the current situation with the Clarenville Shopping Centre parking lot.
To read the entire decision of the Appeals Court in the Gander case, visit www.ganderbeacon.ca and click on the link with this story.