The County Conservancy has obtained a legal opinion on what Council has called a “legally binding” agreement with Picton Terminals, one on which any vote can only be a matter of form, to ratify a done deal.

Rodney Gill of Goodmans LLP has written to advise Mayor Ferguson and members of Council “that there can be no valid or binding agreement between Council and Picton Terminals.”

His letter notes, “Council has received advice from its lawyers that the County is required to proceed with a settlement with Picton Terminals based on draft terms of settlement…that Council considered at [its] June Meeting, because Picton Terminals agreed to the Draft Terms without changes.”

That advice “is not consistent with the facts or the applicable law,” writes Mr. Gill.

“There was no delegation of authority by Council to make a binding settlement offer… Council may only act through by-laws, and Council has not yet accepted any settlement with Picton Terminals.”

“Everyone understood that what the County brought to Picton Terminals were draft terms of settlement.
Full stop.
Nothing was said about those draft terms magically becoming legally binding.
It turns out that matters.” 

Leslie Stewart, President, County Conservancy

The letter reviews Motion 2024-304, passed by a vote of 7-6 at the June 25 meeting of Council, and argues it, “explicitly noted that only ‘draft terms of settlement’ were approved. The word ‘draft’ has meaning and can be contrasted with the phrases ‘terms of settlement’ and ‘final terms of settlement.’”

It notes the Motion makes a distinction between “Draft Terms,” “a settlement agreement,” to be brought to Council after consultation with the Mohawks of the Bay of Quinte, and “executed minutes of settlement.”

The Motion “provided a clear procedure before there would be a bylaw passed authorizing ‘a settlement agreement’, namely: Step 1 — seek similar approval from PT on the ‘draft terms of settlement’, Step 2 — hold a meeting with Council, the Mohawks of the Bay of Quinte Council, and Picton Terminals to discuss the ‘draft terms of settlement’, and Step 3 — hold a meeting of Council to consider ‘a settlement agreement’.”

“The Motion only went so far as to direct legal counsel ‘to seek similar approval from Picton Terminals’ for the draft terms.”

Council’s consideration of a by-law to implement a settlement agreement was to be the next step, taken only after consultation with the MOBQ.

The letter further argues that Council did not assign the authority to its representatives to make a legally binding agreement with Picton Terminals, and so there can be no such agreement.

Council cannot sell Zoning

In a second set of arguments, the letter notes, “Municipalities are not permitted to sell zoning. This is clearly stated in the Supreme Court of Canada’s decision in Pacific National and in many court decisions in Ontario.”

Even though zoning was not the issue of the County’s case against the Terminals, “it is a condition of the Proposed Settlement that the County will request the Minister of Municipal Affairs and Housing to issue a Ministerial Zoning Order.”

The letter explains that municipalities cannot agree to change zoning in return or exchange for something else, just as they cannot agree to keep zoning unchanged in return for something. “Council cannot give up its legislative powers by contract.”

Asking for an MZO, the letter argues, is the same thing as the municipality changing the zoning of the Picton Terminals properties itself. The MZO is being offered to resolve an ongoing dispute. It therefore contravenes “the clear rule against selling zoning.”

The letter concludes by noting Council need not accept the proposed settlement, which could be challenged in any case as illegal and therefore void.

Leslie Stewart, President of the County Conservancy, praised the letter’s straightforward and commonsensical arguments. “Everyone understood that what the County brought to Picton Terminals were draft terms of settlement. Full stop.

“Nobody said anything about those draft terms magically becoming legally binding. It turns out that matters.”

“We have requested,” she continued, “further to this very strong legal argument, that Council reject the Proposed Settlement and direct staff to ensure that Picton Terminals complies with all applicable laws in the County.

“We also ask that Council defer consideration of the Proposed Settlement until it has had an opportunity to seek another opinion with respect to the matters and issues raised in the letter.”