Site plan application was incomplete as result of developer's failure to file required materials

Municipality promulgated “Community Improvement Plan” with view to revitalizing its core, in phases . Developer became assignee of development agreement under which developer would proceed with certain phases of development and have right of first offer for future phases . Municipality was entitled to repurchase property from developer under certain conditions, including failure to commence construction by certain date if not awaiting confirmation of approval on any application . Developer was pursuing approval of revised site plan when municipality served notice to repurchase due to developer’s failure to commence construction . Developer's action against municipality for relief for breach of contract and other causes of action was dismissed . Trial judge found pursuing approval of revised site plan did not fall within meaning of awaiting confirmation of approval on any application . Trial judge found developer had not made all required submissions, so materials had not yet been submitted to approval authority by its staff . Trial judge found obligation had rested throughout on developer, not municipality, to ensure its submissions for site plan revision were adequate and complete . Trial judge found all evidence intrinsic and extrinsic to words of contracts and written words later exchanged between parties pointed to mutual interpretation that developer was obliged to commence construction by certain date . If court was to avoid interpretations that rendered terms of contract ineffective, evidence tipped in favour of conclusion that municipality had right to serve its notice of repurchase. Developer appealed. Appeal dismissed. Trial judge properly found site plan application was incomplete as result of developer's failure to file required materials, which was finding of fact available to her on record. Trial judge was entitled to conclude municipality had right to invoke repurchase terms of agreement. There were no unfairness issues raised at trial and there was no basis to do so, nor were trial judge's reasons inadequate for review.

Central Park Ajax Developments Phase 1 Inc. v. Ajax (Town) (2019), 2019 CarswellOnt 15613, 2019 ONCA 793, R.G. Juriansz J.A., M.L. Benotto J.A., and B.W. Miller J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 15894, 2018 ONSC 5769, A.M. Mullins J. (Ont. S.C.J.).

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