Cambridge council breached its procedural bylaw last May when it voted to reconsider an application from Broccolini Real Estate Group to build the Amazon warehouse in Blair.
That was one of the findings of a judicial review released March 31 that found in favour of Broccolini and awarded costs limited at $20,000 to be paid by Blair Engaged, the grassroots community group that fought the mega-warehouse after the city endorsed a Minister's Zoning Order for the property in 2021.
As part of the judicial review, the group sought an injunction to halt construction of the Amazon distribution centre in Blair and take the city and former council to task for what it called an "illegal" process leading up to the decision to approve the massive warehouse.
The previous council approved the project last May after deciding to reconsider a previous decision in which they voted 5-4 against the mega warehouse.
A Hamilton divisional court of the Ontario Superior Court of Justice decided Blair Engage's case against the city and Broccolini "raises a serious justiciable issue" when it agreed to the hearing, but said council's actions ultimately didn't meet the definition of "bad faith, illegality, and lack of procedural fairness" despite the finding it was in breach of its own procedural bylaw.
Blair Engaged said council voted to approve the warehouse after denying the application in its initial decision, "in part based on irrelevant considerations, including the threat of litigation."
Broccolini called the judicial review, which was initiated last fall "moot," given the fact buildings on the property were already demolished, construction of the warehouse began in June 2022 and as of February 2023, when their application for judicial review was heard, construction was more than 50 percent complete.
It is expected to be completed in early 2024.
The court said it was "a close call" in concluding the application was not moot and found merit in the proceedings.
"Construction of the distribution warehouse is not complete and council could still impose additional mitigation requirements on the structure under the Heritage Act and through the application of other aspects of the relevant policy frameworks which aim to preserve the heritage character of Blair Village," it said.
"To that extent, a live controversy remains."
The City of Cambridge acknowledged that although the process may not have been “perfect,” it was fair and there was prior consultation.
The court concluded that the city did not owe Blair Engaged a duty of procedural fairness in making its decision but that it met the definition of procedural fairness.
The court found council provided notice to the applicant and its members that it was considering whether to approve the heritage assessment and traffic impact studies for the property.
Broccolini’s site plan application materials were posted on the city’s website and were readily accessible to the public in advance of the
March 15 meeting.
Cambridge also provided notice of the municipal heritage advisory committee meeting on February 17, 2022, and 30 delegates, including members of Blair Engaged, attended.
"Members of Blair Engaged and the public were provided a full opportunity to make submissions at the March 15 meeting and to ask questions at the March 21 meeting."
"Although we conclude that Council breached its procedural by-law by failing to give adequate notice of the motion to reconsider the matter, council did not act in bad faith in doing so and, having regard to all the circumstances, we decline to grant the relief sought by Blair Engaged."
The court said given the current status of the Broccolini project and its findings on the "degree of mootness of the application for judicial review," non-compliance with the procedural bylaw would not constitute a sufficient basis for quashing the decision.
The court did, however, decide not to award any legal costs to the city.
Blair Engaged, will have to pay Broccolini, however. The court fixed those costs at $20,000.
The city did not immediately respond to a request for comment.
