BYLAW - Arbitration of Dispute With Glenowen - 19921125 - 342592BY-LAW NUMBER 3425-92
OF THE CORPORATION OF THE TOWN OF AURORA
BEING A BY-LAW to authorize the
arbitration of a dispute with
Glenowen Properties Limited.
WHEREAS, Glenowen Properties Limited has made representations to the
Municipal Council of the Town of Aurora seeking return of a portion of funds
contributed to the municipality pursuant to an Agreement dated the 25th day
of April 1990;
AND WHEREAS, the parties have been unable to resolve the issue and Council
has, pursuant to a Resolution enacted on the 30th day of September, 1992,
agreed to proceed to binding arbitration;
NOW THEREFORE, the Municipal Council of the Town of Aurora ENACTS AS
FOLLOWS:
1. THAT approval is hereby granted for a process of binding arbitration
to determine whether any portion of the $156,768.00 paid as a
special infill charge in connection with land development at 85
Wellington Street West should be returned to Glenowen Properties
Limited.
2. THAT the arbitration shall be carried out in accordance with the
provisions of the Arbitration Act R.S.O. 1990 except where the
provisions of the Agreement appended hereto as Schedule "A" prevail.
3. THAT the Mayor and Clerk are hereby authorized to execute the
Agreement to Submit to Arbitration dated the 25th day of November,
1992 attached as Schedule "A" to this By-law.
4. THAT Mr. E. Crossland be and is hereby appointed as Arbitrator.
5. THAT the provisions of this by-law shall come into force and effect
upon the final passage thereof.
READ A FIRST TIME THIS 19th DAY OF OCTOBER, 1992
READ A SECOND TIME THIS 25th DAY OF NOVEMBER, 1992
READ A THIRD TIME AND FINALlY PASSED THIS 25th DAY OF NOVEMBER, 1992.
L.
AGREEMENT TO SUBMIT TO ARBITRATION
This Agreement made as the 25th day of November, 1992,
BETWEEN:
OF THE FIRST PART
-and-
OF THE SECOND PART
THE CORPORATION OF THE TOWN OF AURORA
(hereinafter the "Town")
GLENOWEN PROPERTIES
(hereinafter "Glenowen")
WHEREAS Glenowen has contributed the amount of one hundred and fifty six thousand, seven
hundred and sixty-eight dollars ($156, 768.00) as a special sewage infill charge in connection
with land development at 85 Wellington Street West and takes the position that it should be
required to pay some lessor amount (hereinafter the "Issue" in dispute):
AND WHEREAS the parties hereto have been unable to resolve the issue .and have agreed to
proceed to binding arbitration;
NOW THEREFORE in consideration of the payment of two dollars ($2.00) and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
Arbitration On All Matters
1. All matters in dispute arising from the issue shall be finally settled by arbitration in
accordance with the provisions of this Agreement and the provisions of the Arbitrations
Act, R.S.O. 1990 c.A.24 (the "Act") shall apply, except where a contrary intention is
expressed herein.
Appointment of Arbitrator
2. (a) The parties hereto shall, on or before October 31st, 1992 agree to the
appointment of an arbitrator.
(b) If the parties are unable to agree on an arbitrator, either party shall be entitled to
apply to a judge of the Ontario Court of Justice (General Division) to appoint an
arbitrator and the arbitrator so appointed shall proceed to determine the issue in
accordance with the provisions of this Agreement.
Date for Submission of Affidavit Evidence and Disclosure of Documents
3. All documents in the possession and written submissions of each party relating to the
issue and all affidavit evidence to be us~ by each party shall be submitted by each party
to the arbitrator and to the other party by November 27, 1992 after the acceptance by the
arbitrator of the offer to arbitrate or the appointment of an arbitrator by the Court.
Date for Decision
4. The arbitrator shall provide his decision of the issue not later than December 16, 1992
after the submission of documents, affidavit evidence and written submission by each
party and shall reduce same to writing and deliver one copy thereof to each party.
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Payment of Arbitrator's Fee and Hearing Costs
5. The parties hereto agree that each shall pay one half of the arbitrator's fee and that each
shall pay its own costs of preparation, including legal costs if necessary.
Perming the Issue
6. (a) The arbitrator's decision shall be limited to the question whether any portion of
the amount of one hundred fifty-six thousand, seven hundred and sixty-eight
dollars ($156, 768) contributed by Glenowen as a special sewage infill charge,
should be returned to Glenowen, together with interest as may be determined by
the Arbitrator, calculated monthly at the prime rate of interest minus 2-1/2%.
' (b) The parties hereto agree that neither the Town nor Glenowen has any damages
for negligence, breach of contract or other type of damages whatsoever arising
from the issue herein.
(c) Each of the parties hereto agrees to provide a full and final release with respect
to the issue and with respect to any claims that may arise from the circumstances
giving rise to the issue upon receipt of the arbitrator's decision and payment of
funds, if required.
Binding Nature of Decision
7. The parties further agree:
(a) That any award or decision made by the arbitrator is binding upon them and may
be enforced in the same manner as a judgement or order to the same effect
pursuant to the Act.
(b) That either party may obtain an order under section 7 of the Act staying any legal
proceeding relating to the issue.
(c) That neither party shall have the right to appeal the award or decision of the
arbitrator to the court or apply to set aside the award or decision of the arbitrator.
Proceedings
8. (a) The arbitrator's decision shall be based upon the following:
affidavit evidence submitted by each party,
the documents and material disclosed by each party,
written submissions of each party,
(b) The parties agree that the arbitrator shall not have the right to summons witnesses
to provide oral evidence. The arbitrator shall have the right, where the truth of
any affidavit is called into question by the opposing party, to question the veracity
of any affidavit.
(c) The parties hereto shall co-operate with the arbitrator and shall provide him with
all information in their possession or under their control which is necessary or
relevant to the issue being determined.
Binding on Successors and Assigns
9. This Agreement shall be binding upon successors and assigns of the parties hereto.
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Arbitrator To Be Held Harmless
10. The Parties to this Agreement agree to save and hold the Arbitrator harmless from any
actions resulting in any way from this Arbitration.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under the hands of
their respective corporate officers duly authorized.
THE CORPORATION OF THE TOWN OF AURORA
John G. West,
Lawrence Al ·
GLENOWEN PROPERTIES LIMITED