Hamilton

'I dropped my iPhone': Hamilton stunned by court ruling saying it has to pay the NPCA

Hamilton has lost a legal challenge to get out of paying part of its Niagara Peninsula Conservation Authority (NPCA) levy. City councillors say they're frustrated and confused by it, and not ready to give up the fight. 

The city is looking at whether it has any recourse, or just has to put up with the new levy

Coun. Brad Clark, centre, gets ready to cast a ballot for interim NPCA chair in January. Without more seats on the board, he says, "we’re there for the ride." (Samantha Craggs/CBC)

Hamilton has lost a legal challenge to get out of paying part of its Niagara Peninsula Conservation Authority (NPCA) levy.

And it's a decision that has city councillors frustrated and confused, and prepared to keep on fighting.

The NPCA increased Hamilton's levy by nearly $1 million in 2015, saying it has to be based on all of Hamilton, not just the part in the NPCA watershed. Hamilton appealed that to the province's mining and lands commissioner, who ruled with the NPCA. So Hamilton took it to court. 

Now a divisional court judge has ruled with the NPCA too. Not only does Hamilton have to pay the new levy, but it has to pay costs to the NPCA too.

"I dropped my iPhone when I read that decision last night," said Lloyd Ferguson, Ward 12 (Ancaster) councillor. "I can't believe we lost this thing."

"Why did we lose this thing? I want to know. I need to know."

The answer, released Tuesday by Justice Herman Wilton-Siegel, is complicated.

The NPCA watershed touches the former municipalities of Glanbrook, Stoney Creek and Ancaster — about 21.1 per cent of Hamilton's land mass. Before amalgamation in 2001, those three paid their own NPCA levies.

Newly amalgamated Hamilton feared a hike in its levy, and reached an agreement in 2004 to only pay 3.93 per cent of the NPCA's budget. It stayed that way until 2014. 

'Absurd'

That's when Carmen D'Angelo — once Hamilton's rep on the board — became the NPCA's CEO. D'Angelo told Hamilton city council his staff revisited the Conservation Authorities Act and realized Hamilton was paying too little, and no one could find any evidence of the 2004 agreement.

The mining and lands tribunal ruled that Hamilton's new levy, which went from $513,473 to $1.2 million, was accurate. The city argued in court this was an "absurd" application of provincial law. Divisional court sided with the tribunal.

"Based on the foregoing, the city's application is denied," the decision says. "Costs in the agreed amounts, on an all-inclusive basis, of $20,000 are payable by the City to the NPCA and Niagara, collectively, and of $15,000 are payable by the City to Haldimand." 

It's a blow to Hamilton. Two other conservation authorities — Grand River and Halton — have since hiked their levies in the same way. Hamilton has been paying its NPCA levy, but under protest.

The ruling also appears to conflict with how many seats Hamilton has on the board, said Brad Clark, Ward 9 (upper Stoney Creek) councillor and NPCA board member.

'We're there for the ride'

The NPCA calculates board membership based on the part of Hamilton that's in the watershed. Niagara Region says based on the Conservation Authorities Act, it's entitled to as many as 27 seats, but it only appoints 12. Hamilton has four seats, and Haldimand two.

That means all of Hamilton pays the levy, Clark said, but only part of Hamilton is on the board.

"It's inequitable," he said.

Hamilton's seats, he said, are "just token positions. We're there for the ride, so they can say "oh yes, Hamilton's with us."

City council's general issues committee voted Wednesday for Mayor Fred Eisenberger to negotiate board membership with Niagara and Haldimand.

Meanwhile, the citizen group A Better Niagara will head to Welland superior court May 13 to ask a judge to rule on how many seats Niagara should have.

The group still wants municipalities to negotiate, says Liz Benneian. This answer would just give Niagara a starting point.

"We don't belive a fair negotiation can take place unless all the parties know what they're entitled to under the law." 

ABOUT THE AUTHOR

Samantha Craggs is journalist based in Windsor, Ont. She is executive producer of CBC Windsor and previously worked as a reporter and producer in Hamilton, specializing in politics and city hall. Follow her on Twitter at @SamCraggsCBC, or email her at samantha.craggs@cbc.ca

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