



COURT OF APPEAL FOR ONTARIO

CITATION:  Nylene Canada Inc. v. Arnprior (Town), 2017 ONCA
    726

DATE: 20170919

DOCKET: C63465

Hoy A.C.J.O., MacFarland and Huscroft JJ.A.

BETWEEN

Nylene Canada Inc.

Plaintiff
(Appellant on Appeal)

and

Corporation of the Town of Arnprior

Defendant
(Respondents on Appeal)

Pasquale Santini, for the appellant

Paul A. Webber and Melanie H. Levesque, for the
    respondents

Heard and released orally: September 12, 2017

On appeal from the order of Justice Robert J. Smith of
    the Superior Court of Justice, dated February 1, 2017.

REASONS FOR DECISION

[1]

The respondent, the Corporation of the Town of Arnprior, charged
    wastewater processing fees based on wastewater rates multiplied by the amount
    of a users water consumption. The appellant, Nylene Canada Inc., commenced an
    action against the respondent alleging that charging for wastewater processing
    services based on water consumption, rather than the amount of water that
    actually exits as wastewater, contravened s. 394(1)(c) of the
Municipal Act
.
    That provision prohibits a municipality from imposing a fee or charge based on
    the use of a service, other than a service provided by the municipality. The
    appellant pleads that the respondent has been unjustly enriched by charging on
    the basis that it has and was negligent in failing to implement a system where
    users can apply for a rebate for sewer capacity they did not use.

[2]

In response, the respondent brought a motion for summary judgment
    dismissing the appellants claim.

[3]

The motion judge concluded that he could make a fair and just
    determination under r. 20 of the
Rules of Civil Procedure
because the
    facts were largely not in dispute and there were no issues of credibility. He
    concluded that the respondent did not violate s. 394(1)(c) and had made a
    policy-based decision that was immune from civil action under s. 450 of the
Municipal
    Act
. That section provides, in relevant part, that no proceeding based on
    negligence in connection with the exercise or performance of a discretionary
    power or function shall be commenced against the municipality if the action
    results from a policy decision of a municipalitymade in a good faith exercise
    of the discretion.

[4]

The motion judge granted summary judgment dismissing the appellants
    action.

[5]

The appellant concedes that this was a proper case for summary judgment,
    and that the respondent made a policy decision. However, he argues that the
    decision is not immune from civil action under s. 450 because the decision
    violated s. 394(1)(c) and, therefore, was not made in a good faith exercise of
    the discretion. He acknowledges that if we agree with the motion judges
    interpretation of s. 394(1)(c), the appeal fails.

[6]

We agree with the motion judge that the respondent did not violate
    s.394(1)(c): the respondent imposed a fee or charge based on the use of the
    service, namely wastewater processing services that it provided to all its rate
    payers.

[7]

Accordingly, the appeal is dismissed. The respondent shall be entitled
    to its costs of the appeal fixed in the amount of $15,000, inclusive of HST and
    disbursements.

Alexandra Hoy
    A.C.J.O.

J. MacFarland J.A.

Grant Huscroft J.A.


