B E T W E E N: ONTARIO SUPERIOR COURT OF JUSTICE Court File No. TSI INTERNATIONAL CANADA INC. Plaintiff and THE CORPORATION OF THE TOWN OF MILTON, GORDON KRANTZ, WILLIAM F. MANN aka BILL MANN, and BARBARA KOOPMANS Defendants STATEMENT OF CLAIM TO THE DEFENDANT(S) A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiff. The Claim made against you is set out in the following pages. IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a Statement of Defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the Plaintiff s lawyer or, where the Plaintiff does not have a lawyer, serve it on the Plaintiff, and file it, with proof of service in this court office, WITHIN TWENTY DAYS after this Statement of Claim is served on you, if you are served in Ontario. If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your Statement of Defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days. Instead of serving and filing a Statement of Defence, you may serve and file a Notice of Intent to Defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your Statement of Defence. IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE. TORONTO 56049-1 1008453v1
-2- TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it has not been set down for trial or terminated by any means within five years after the action was commenced unless otherwise ordered by the court. Date TO: Issued by Address of court office: The Corporation of the Town of Milton 150 Mary Street Milton, ON L9T 6Z5 Local Registrar 491 Steeles Avenue East Milton, ON L9T 1Y7 AND TO: AND TO: AND TO: Gordon Krantz c/o The Corporation of the Town of Milton 150 Mary Street Milton, ON L9T 6Z5 William F. Mann aka Bill Mann c/o The Corporation of the Town of Milton 150 Mary Street Milton, ON L9T 6Z5 Barbara Koopmans c/o The Corporation of the Town of Milton 150 Mary Street Milton, ON L9T 6Z5
-3- CLAIM 1. The Plaintiff claims against the Defendants: (b) Damages for misfeasance and abuse of public office in the amount of $150,000,000.00; In the alternative to, damages for negligence in the amount of $150,000,000.00; (c) A Declaration that the Town Council resolution passed on January 28, 2013 whereby Town Council rescinded the TSI Resolution (as defined hereinbelow) shall be quashed or deemed void for failure to comply with the Municipal Act, 2001, S.O. 2001; (d) aggravated and punitive damages in the amount of $1,000,000.00; (e) special damages in an amount of approximately $1,000,000.00; (f) (g) (h) pre-judgment and post-judgment interest on the amount claimed in the preceding sub-paragraphs in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43; the costs of this action on a substantial indemnity basis or, in the alternative, a partial indemnity basis; H.S.T. on all eligible fees and disbursements pursuant to the Excise Tax Act, R.S.C. 1985, c. E-15, as amended; and such further and other relief as this Honourable Court may deem just. The Parties 2. The Plaintiff, TSI International Canada Inc. ( TSI ), is a corporation carrying on business as a real estate developer throughout Canada, with its head office located in Mississauga, Ontario.
-4-3. The Defendant, The Corporation of the Town of Milton ( the Town ) is a municipal corporation created pursuant to the Municipal Act, 2001 S.O. 2001, c. 25, as amended and is responsible for carrying out the administration and oversight of planning and development in the Town. 4. The Defendant, Gordon Krantz ( Krantz ), is an individual residing in the Town of Milton and, at all material times, was the Mayor of the Town. 5. The Defendant, William Mann aka Bill Mann ( Mann ), is an individual residing in the Town of Milton and, at all material times, was either a Senior Planner, Senior Manager, Director of Planning and Development or Chief Administrative Officer of the Town. 6. The Defendant, Barbara Koopmans ( Koopmans ), is an individual residing in or near the Town of Milton and, at material times, was either the Senior Manager of Policy Planning and/or the Acting Director of Planning and Development for the Town. Initial Consultation Meetings with Town 7. In or about the Spring of 2003, a series of meetings were held between representatives of TSI and representatives of the Town. TSI wanted to discuss the Town s future plans for land development and zoning. In particular, TSI inquired about the lands municipally known as 9063 Twiss Road, Milton, Ontario and legally described as Lot 6, Concession 3, in the Town of Milton ( the Lands ). 8. The Lands are approximately 41 hectares in size. TSI was interested in the Lands as a potential site for the development of a residential subdivision. Specifically, TSI was interested in developing up to 60 estate homes on private services with internal roads connecting to Twiss Road and Reid Sideroad ( the Development ). The Development also contemplated the preservation of an existing environmental area. 9. TSI was advised by Mel Iovio ( Iovio ), then the Town s Director of Planning and Development, that an Official Plan amendment would be required in order to develop the Lands with residential estate homes. TSI was advised that various studies would need to be carried out over the course of a five-year period, including studies to satisfy the Niagara Escarpment
-5- Commission ( NEC ) and Conservation Halton. TSI was further advised that it would need to submit a formal application of subdivision. 10. After performing some preliminary investigations with the NEC, Conservation Halton, the Milton Historical Society and the Ministry of Environment, which did not reveal any serious concerns with respect to the Development, TSI purchased the Lands in November 2003. Post-Purchase Meetings with Town and Development Applications 11. Shortly after TSI purchased the Lands, the Province of Ontario passed the Greenbelt Protection Act, 2004, S.O. 2004 c.9, which established a Greenbelt study area, and placed a one-year moratorium on development within that area. 12. A Greenbelt Plan was subsequently established pursuant to section 3 of the Greenbelt Act, 2005, S.O. 2004, c.9, which took effect on December 16, 2004. After that date, all new developments within the Greenbelt would need to comply with the Provincial Policy Statement, the Growth Plan for the Greater Golden Horseshoe, 2006 ( the Growth Plan ) and the Greenbelt Plan. 13. From 2003 to 2012, TSI and its agents attended numerous consultation meetings with the Town, Halton Region ( the Region ) and other public authorities with respect to the development of the Lands and the Region s response, in general, in response to the Provincial Policy Statement, the Growth Plan and the Greenbelt Plan. 14. In 2008, TSI received responses from various public authorities which were favourable to the Development, including: (b) (c) The Ministry of Natural Resources confirmed that the license for the sand and gravel pit to the northwest of the Lands had been revoked and for several years prior to that the pit was not in operation; NEC confirmed that the Lands are not included in the Niagara Escarpment Development Control Area or the Niagara Escarpment Plan Area; and Reports and studies commissioned by TSI established that the Development s impact on groundwater would be negligible.
-6-15. In March 2008, in accordance with advice received from Town Planner Anne Dawkins ( Dawkins ), TSI submitted development applications for the Lands to the Town, including a zoning by-law amendment (File Z-09-08) and a plan of subdivision (File No. 24T-08003), (collectively, the Applications ), pursuant to the Planning Act, R.S.O. 1990, c. P.13 ( the Planning Act ). 16. The Applications included a number of reports and studies which addressed the impact of the Development and a private official plan amendment application for the Lands. On or about May 27, 2008, various Town representatives, including Mann, Iovio and Dawkins, advised TSI to wait until the Town brought its Official Plan into conformity with Provincial Plans through Official Plan Amendment No. 31( OPA 31 ), as bringing the Lands into the Hamlet of Campbellville could only be done after the Town had completed its Greenbelt Plan conformity exercise. In response, TSI withdrew its private official plan amendment application on or about July 17, 2008. 17. TSI subsequently participated in the Town s consultation meetings and proceedings concerning OPA 31. In particular, TSI requested the Town to utilize a provision of the Greenbelt Plan and include in OPA 31 a one-time rounding out of the Campbellville Hamlet to include the Lands, thus enabling the Development to be completed in compliance with the Greenbelt Plan. 18. In or about June 2009, TSI attempted to determine whether Town Council could pass a motion supporting the inclusion of the Lands in the Hamlet of Campbellville. The Defendant, Mann, had discussions with TSI wherein he provided feedback on the wording of the motion. Mann expressed concerns about the timing of the motion as doing so might encourage other building companies to submit similar proposals and, implicitly, Mann did not want TSI to suffer any disadvantage. Mann suggested that rather than bringing a motion, a meeting could be scheduled between TSI and the Town to discuss the studies that needed completion and a schedule for same. 19. In or about November 2009, several discussions took place between TSI, Mann and several Town councillors concerning the wording of a motion that might be passed by Council in relation to the rounding out of the Campbellville Hamlet.
-7-20. In March 2010, Town Councillor Cindy Lunau requested a meeting with TSI, Mann and several other Councillors to discuss how to move forward with a motion to settle the one-time rounding out issue. It was determined that Colin Chung, a municipal planner retained by the Plaintiff, would attend the Town s Official Plan Confirming Statutory Public Meeting, to be held on May 10, 2010, and would give a presentation to Council on TSI s behalf. It was also confirmed that Dan Lane of TSI would meet with all Town Councillors prior to the meeting on May 10, 2010. 21. On May 10, 2010, Colin Chung addressed Town Council and asked that Council consider the merits of the proposed one-time minor rounding out of the Campbellville Hamlet to include the Lands, as part of the Official Plan conformity process. 22. During the week of June 7, 2010, the Defendant, Mann, advised TSI that no motion would be required as the wording of section 5.3.3.10 of OPA 31 had been, or would be, amended by verbal resolution, being Town Resolution No. 630-10 ( the TSI Resolution ), to permit a one-time rounding-out of the Campbellville Hamlet to include the Lands. 23. On June 14, 2010, the Town held a special council meeting and voted publicly to adopt OPA 31, being an amendment to the Town s Official Plan to bring it into conformity with the Growth Plan and the Sustainable Halton Plan. By adopting OPA 31, the Town approved of a one-time rounding-out of the Campbellville Hamlet to include the Lands. 24. OPA 31 was submitted to the Region for approval on June 16, 2010, but the Region failed to make a decision with respect to it. 25. The Region of Halton subsequently advised that it could not make a decision on OPA 31 until expiry of the appeal period for the Region Official Plan Amendment 38 ( ROPA 38 ), which was December 14, 2011. 26. At a meeting at the Town s offices on February 7, 2011, Krantz and Mann, along with Town Councillors Cindy Lunau and Colin Best, reaffirmed to TSI that they were supportive of including the Lands in a one-time rounding out of the Campbellville Hamlet.
-8-27. Prior to the approval of ROPA 38, TSI met with the Town, Region, Conservation Authority and the Ministry of Municipal Affairs and Housing ( MMAH ) to discuss the Lands being rounded into the Campbellville Hamlet. 28. On November 24, 2011, the MMAH approved of ROPA 38, with some modifications. TSI appealed this decision to the Ontario Municipal Board ( OMB. ) on December 8, 2011, solely with respect to its failure to recognize the one-time minor rounding out of the Campbellville Hamlet to include the Lands, as expressed in OPA 31, and as approved by the Town. 29. On December 6, 2012, TSI appealed OPA 31 to the OMB, solely with respect to section 5.3.3.10 of OPA 31 as it applies to the Lands, on the basis that more than 180 days had passed since OPA 31 was submitted and the Region had failed to make a decision with respect to it. 30. As of the date that this Statement of Claim was issued, neither of these two appeals have been disposed of by the OMB. 31. On January 7, 2013, TSI filed a motion seeking, inter alia, an order permitting its appeal of ROPA 38 to be heard independently of other appeals of ROPA 38, and an order consolidating TSI s appeal of ROPA 38 with its appeal of OPA 31. Improper Rescinding of Town Resolution 32. On January 28, 2013, Town Council held a meeting during which TSI expected the Town to provide further direction concerning its appeals of OPA 31 and ROPA 38. During open session, no discussions took place and no resolutions were passed concerning TSI, OPA 31 or ROPA 38. Furthermore, no resolutions passed in camera were announced. 33. On January 31, 2013, TSI received an email from the Town s lawyer who advised that on January 28, 2013, Town Council without notice rescinded the TSI Resolution which, as noted above, directed that text be inserted in Section 5.3.3.10 of OPA 31 permitting a one-time rounding out of the Hamlet of Campbellville to include the Lands. TSI had no forewarning of this action on the part of the Town, which contradicted numerous representations made to TSI by the Town and/or its employees.
-9-34. The Defendants, Krantz and Koopmans, were present at Town Council on January 28, 2013 along with the following Town Councillors: Cindy Lunau, Sharon Barkley, Colin Best, Mike Cluett, Richard Di Lorenzo, Zeeshan Hamid, Arnold Huffmann, Carl (Tony) Lambert, Richard Malboeuf and Greg Nelson. 35. The Plaintiff pleads that the Town s decision to rescind the TSI Resolution violated the Municipal Act, 2001, S.O. 2001, c. 25 ( the Act ) in that: (b) (c) (d) The Town held a closed meeting for reasons which do not fall within the exceptions set out in s. 239 of the Act; The Town failed to state by resolution in open session that a closed meeting would be held on January 28, 2013; The Town failed to state by resolution in open session the general nature of the matters to be discussed at the closed meeting on January 28, 2013; The Town held a vote during a closed meeting on matters which do not fall within the exceptions set out in s. 239 of the Act; (e) The Town has failed to make a public record of the closed meeting on January 28, 2013 noting all resolutions or decisions made during such meeting; and (f) The Town failed to act in good faith when making its decision to rescind the TSI Resolution. Misfeasance in Public Office 36. The Plaintiff states that the Town, together with its employees and representatives, including Krantz and the other individual Defendants, and/or others whose identity is known to the Defendants, abused their public office and power, by deliberately and intentionally injuring TSI while knowing that the Plaintiff would likely be injured as a consequence of these actions. The Plaintiff states that the Defendants acted maliciously and with intent to harm the Plaintiff.
-10-37. In particular, the Town and its officials took the following steps in furtherance of their objectives to injure the Plaintiff: (b) (c) (d) (e) The Town and/or its officials misled the Plaintiff into believing that the Town would support the Plaintiff s efforts to develop the Lands; The Town caused TSI to incur the costs of numerous reports and studies that the Town subsequently ignored; Town officials deliberately and unlawfully rescinded the TSI Resolution in violation of the Act, as noted above; Town officials refused to have any public debate or discussion concerning its proposed rescinding of the TSI Resolution, which was done in secret and without any forewarning to the Plaintiff or the public generally; To date, the Town has failed to make public the reasons for rescinding the TSI Resolution. 38. The Plaintiff pleads that the Town, its agents and employees at all material times had a duty to: (b) (c) (d) (e) act in good faith; deal with the Plaintiff in the ordinary course; to act impartially toward the Plaintiff; to carry out all duties for which statutory powers were conferred with integrity and the absence of malice; and be bound by and comply with the Act. 39. The Plaintiff pleads that the actions of the Defendants, as described above, constitute an abuse of public power for improper and unlawful purposes, and that such actions are particularly egregious given the Town s status as a public entity.
-11- Negligence of the Defendants 40. In the alternative, the Plaintiff states that the Town, through its agents and/or employees, was negligent in the handling and administration of the Applications, the TSI Resolution and OPA 31, the particulars of which are pleaded herein. 41. The Plaintiff states that the individual Defendants were, at all material times, the employees and/or agents of the Town and as such, the Town is vicariously liable for their acts and omissions. 42. The Plaintiff states that the Town owed the Plaintiff a duty of care, which duty was breached when the Defendants took steps to rescind the TSI Resolution in violation of the Act. 43. The Plaintiff states that the Town and its employees, agents and/or servants, for whom it is responsible: (b) (c) (d) failed to carry out their responsibilities in accordance with the established policies, procedures, regulations, relevant statutes and by-laws; failed to exercise due diligence with respect to the Applications, the TSI Resolution and OPA 31; acted recklessly and without regard for the Plaintiff in negligently rescinding the TSI Resolution knowing that their actions would harm the Plaintiff; and failed to properly oversee and supervise its employees who were responsible for administering and/or overseeing the development and application process. 44. The Plaintiff was at all times ready, willing and able to proceed with developing the Lands. Damages 45. As a result of the Defendants misfeasance in public office and/or negligence, the Plaintiff has suffered and continues to suffer significant damages.
-12-46. As a result of the improper actions of the Defendants, the Plaintiff has been prevented from carrying out its business activities and has suffered significant damages including: (b) (c) loss of profits from the development of the Lands; losses sustained as a result of the decreased value of the Lands; and out of pocket expenses, the full particulars of which will be provided prior to trial. 47. The Plaintiff has incurred approximately $1,000,000.00 in out-of-pocket expenses associated with the Development which are unrecoverable in the event that the Plaintiff is not permitted to develop the Lands as sought. 48. The Plaintiff further pleads that the actions of the Defendants were high-handed and oppressive and, as such, justify an award of punitive and exemplary damages. 49. The Plaintiff pleads and relies upon the provisions of the Planning Act, R.S.O. 1990, c. P.13, as amended, the Negligence Act, R.S.O. 1990 c. N.1 as amended. 50. The Plaintiff proposes that this Action be tried in the Town of Milton. May 11, 2015 DICKINSON WRIGHT LLP Barristers & Solicitors 199 Bay Street Suite 2200, Box 447 Commerce Court Postal Station Toronto, ON M5L 1G4 Michael Miller (14441G) Ted A. Kalnins (50619C) Tel: 416-777-0101 Fax: 416-865-1398 Lawyers for the Plaintiff
TSI INTERNATIONAL GROUP INC. v THE CORPORATION OF THE TOWN OF MILTON et al. Plaintiff Defendants Court File No. ONTARIO SUPERIOR COURT OF JUSTICE PROCEEDING COMMENCED AT MILTON STATEMENT OF CLAIM Dickinson Wright LLP Barristers & Solicitors 199 Bay Street Suite 2200, Box 447 Commerce Court Postal Station Toronto, ON M5L 1G4 Michael Miller (14441G) Ted A. Kalnins (50619C) Tel: 416-777-0101 Fax: 416-865-1398 Lawyers for the Plaintiff