On 20 October 2017 the Town of Newmarket will ask the Superior Court for a declaration that the land swap agreement it entered into with Michael Bryan in 2003 is binding on Bryan's successor in title, Bob Forrest's Main Street Clock Inc.
The Town's counsel, Leo Longo, served notice on Forrest's lawyer, Ira Kagan, on 14 June 2017, and filed papers with the Court. As I tap this out there has been no response from Forrest's lawyer as of this afternoon when I wandered down to the Courthouse in Eagle Street to check the files.
We learn that those who wish to oppose the application
"must forthwith prepare a notice of appearance in Form 38A"
and serve it on the Town and file it, with proof of service, in the Court office.
Form 38A simply requires Forrest to state if he is going to respond to the application. Seems pretty straightforward to me. The complicated stuff comes later.
If Forrest chooses not to respond then it is all over. The Court would undoubtedly order the land exchange that was foreshadowed in the 2003 agreement but, inexplicably, was never carried out. It would mean curtains for Bob's dream of a towering new condo in the heart of the old downtown.
We have this weird situation where the OMB appeal and the Court application are running in parallel. Yet what happens with the latter directly affects the trajectory of the first.
All the Parties have to prepare issues lists for submission to Forrest's lawyer, Ira Kagan, who will combine them all into a draft Procedural Order which must be sent to the OMB by this Friday (7 July 2017).
I am a putative Party (representing the Architectural Conservancy of Ontario) but I am also a concerned taxpayer who wants to see the costs of going to the OMB kept to the absolute minimum. The Town is right to defend its position at the OMB but should take all possible steps to bring things to a close asap.
If Forrest is going to contest the Town's application to the Superior Court he should, M'Lud, do so forthwith.
Note: The Town's application to the Superior Court of Justice is brought under Rule 14.05(3)(d), (e) and (g) of the Rules of Civil Procedure which state:
14.05 (3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,
(d) the determination of rights that depend on the interpretation of a deed, will, contract or other instrument, or on the interpretation of a statute, order in council, regulation or municipal by-law or resolution;
(e) the declaration of an interest in or charge on land, including the nature and extent of the interest or charge or the boundaries of the land, or the settling of the priority of interests or charges;
(g) an injunction, mandatory order or declaration or the appointment of a receiver or other consequential relief when ancillary to relief claimed in a proceeding properly commenced by a notice of application;