Appellate Court of Alberta dismisses the Cochrane Golf Club appeal

 

On June 12, 2024, the Appeal Court of Alberta heard oral arguments regarding the Cochrane Golf Club's desire to remove a restrictive covenant restricting further non-golf development of their lands.

The hearing was presided over by:

1. The Honourable Justice Patricia Rowbotham
2. The Honourable Justice Jolaine Antonio
3. The Honourable Justice Kevin Feehan

On June 26, 2024, the appellate court dismissed the CGC appeal. The restrictive covenant remains valid and enforceable.

I. Decision Overview

[1] Cochrane Golf Club Limited appealed an April 12, 2023  chambers judge’s order dismissing its originating application seeking discharge of a caveat registering a restrictive covenant against its golf club lands, which are adjacent to lands of the Town of Cochrane and residents of the Riverview subdivision of the town. It also appealed the dismissal of its application for a declaration that the covenant did not run with the land, was void or unenforceable, and constituted an expropriation.

[2] For the reasons listed herein, the appeal is dismissed.

Key points made by the Justices

[24] The golf course should not be allowed to take the full benefit of the 2006 agreement for which it bargained, build and sell the multi-family units for an income of at least $3.6 million, and later attempt to escape its corresponding obligations. That would not be a fair or reasonable outcome.

(30] The covenant is not "spent, unworkable, or obsolete", and the financial interests of the golf club do not make it so. The covenant continues to do what it was intended to do, which is to generally prohibit further commercial intrusions into the golf course after construction of the multi-family units in 2006, without a significant change in the needs of the town and the support of the residents.

V. Conclusion

[31] The appeal is dismissed.

Appeal heard on June 12, 2024

Memorandum filed at Calgary, Alberta

this 26th day of June 2024

The Litigation Journey So Far ...

Last updated June 27, 2024

This blog is a running recap on the evolving legal battle in defending the Restrictive Covenant. When you pledge your money to support the battle to save the golf course from re-development, this is where the money has gone: 

1. March 2020 - Cochrane Golf Club ("CGC") notifies the Town of Cochrane ("ToC") of their intent to file court application to remove a Restrictive Covenant ("RC") preventing future non-golf redevelopment, claiming a) the can't make any money and b) that the RC is illegal.
2. May 2020 - Riverview Community Association ("RCA") receives confirmation from ToC regarding their intent to defend the RC in Court.
3. For context, the above starts just as Covid-19 is making itself and its impacts felt, and the Court has no capacity to take on non-urgent cases.
4. March 2021 - a legal Notice of Application letter is mailed to each Riverview resident by the lawyer for CGC giving notice of their court application to remove the RC. It is important to note that - while all Riverview residents properties are listed as benefited lands in the 2007 RC *and* are also parties to that RC Agreement - that Cochrane Golf Course omitted including all Riverview residents as respondents in their court application, as they should have.  Put another way, if you are party to a contract, the other side cannot unilaterally attempt to remove you from that contract. Perhaps they were hoping residents were not organized, but Riverview has always worked hard at maintaining a strong community association, and for exactly this moment.
5. April 2021 - The Riverview Community Association ("RCA")- on behalf of concerned residents - arranges an initial information meeting (via Zoom due to Covid-19) with Peter Major, legal counsel with McLennan Ross and Riverview residents to go over our legal options and desired response to the CGC court application.
6. May - Sept 2021 - 149 Riverview residents commit to engage Peter Major and to fund the legal battle to defend the RC. An initial cash contribution (a "cash call" as they later became known) for $250 was initiated and collected from all.
7. Peter goes to court and is successful in having these 149 property owners added as "Legal Respondents" in the court application joining the ToC in the RC's defence, and participating residents collectively become known as Jennifer Foy et. al.  
8. At about this time, a volunteer steering committee of about 8 residents is formed to be the formal liaison between the Jennifer Foy et.al. group and Peter Major as the lawyer representing them. This steering committee, called the RC Legal Defence Steering Committee ("RCSC"), is separate and distinct from the RCA.  The Steering Committee is responsible for all communication between the legal respondents, their lawyer and also with the town. The RCSC also set up banking and is responsible for making sure the lawyer stays on track, fund raising (cash calls, etc.)  and for payment of invoices as they fall due. The RCSC provides periodic email updates to the respondents and solicits their feedback. 
9. Sept 22, 2021 - Tom Hong, representative of the CGC, is cross examined by Peter Major and a financial expert that we also engaged, known as an Expert Witness. Since the CGC is claiming the golf course is not profitable as one of the reasons to remove the RC, our counsel asks to see the CGC financial statements. It is important to note that the the Town of Cochrane, as a municipal government, could not ask to see CGC financial statements as the Act prohibits them from making "profitability" inquiries (or something to that effect). 
10. Oct 2021, cash call #2 for $250
11. Nov 24, 2021 - Heavily redacted financial statements received from CGC.
12. Dec 23, 2021 - Our lawyer Peter Major files an affidavit in court to request unredacted financials
13. Feb 23, 2022 - Court hearing is held and the Master in Chambers suggests Tom Hong issue unredacted financials if indeed profitability is to be one of their arguments.
14. March 2022 - cash call #3 for $250
15. March 28, 2022 - 2nd cross examination of Tom Hong on the unredacted financial statements, and further financial information requests are made.
16. April 7, 2022, a meeting at the Town of Cochrane's municipal facility was held for all participants. Peter Major, counsel for Riverview respondents, provided a pre-recorded video progress update and answered questions on the progress. A representative from the ToC also provided a legal defense update from their side.
17. May 4, 2022 - Mr. Hong's lawyer provides some unredacted financial records as was recommended by the Court, but omits critical ones requested by Peter Major in March for our financial expert to review.  As a result, Peter Major once again has to make another application to the court to force CGC to provide the golf course profitability financial documents that we are legally required to have and to examine. More time and money, 
18. June 2022 - cash call #4 for $250
19. CGC is served notice Sept 22, 2022 and on Nov 10, 2022 the Court this time orders CGC to comply with our requests for certain financial statements by Nov 17. 
20. On November 17, 2022 over a year from our first request, our lawyer and financial expert receive unredacted financial information showing the financial viability of the golf course. Our lawyer and our financial expert cross-examined CGC on their financial disclosure on Dec 2, 2022. In February 2023, our financial expert concludes that, in his expert opinion, Cochrane Golf Club is a viable business entity.
21. In late December 2022, at our lawyer's request, the steering committee reaches out by survey to the - now - 150 legal respondent group with a 90% response rate from residents regarding their knowledge of the RC when they bought into the neighborhood or their participation back in 2006 in having the RC put in place as part of their agreement to stand-down on further opposition to the golf course redeveloping its driving range (ultimately, the driving range became a condo-development. )
22. Between Dec 2022 and March 24, 2023, our lawyer, the ToC lawyer, and counsel for the CGC prepare and submit written arguments to the Court with our final arguments due by March  31, 2023.
23. March 2023 cash call #5 for $250
24. April 12, 2023 - our day in Court.  The session lasts all day. The Court indicates that they will review all arguments. We learn that it will take 6-8 weeks for a decision, unlike TV!
25. June 19, 2023 - Judge Johnston of the Court of King's Bench Alberta renders her decision on Cochrane Golf Club Limited vs Town of Cochrane and Jennifer Foy et al, and finds that the RC / Restrictive Covenant is enforceable, and dismisses CGC's application to have it removed/struck.  Cost recovery submissions to be received within 30 days.  Any appeal must be filed within 30 days.
26. July 19, 2023 CGC files an appeal of the Court's decision. Our lawyer, Peter Major, has replied to us that - because Justice Johnston has effectively rejected every argument CGC raised in her decision - their appeal request is essentially saying that the Judge was entirely wrong. In getting an appeal request granted, this is much harder to overcome than -say- an error on one main issue that then has the ability to swing the entire decision in a different direction.
27. August 2023 - following our win in court, Peter initiates the process to have CGC reimburse the group for all of our legal fees, now well over $200,000. Based on the wording in the Restrictive Covenant, Peter was confident he would be able to get us full cost recovery.  However, the Court’s August 18, 2023 judgment on costs was not what we expected, and instead of full cost recovery, defaulted instead to a scaled cost recovery formula based on solicitor costs only, which amount to about 1/4th the actual cost.
28. October 2023, cash call #6 for $250
29. Nov 7, 2023 - CGC's grounds for appeal submission is due in Court (called a Factum), and the Town of Cochrane and our group have 30 days to review and respond.

30. Information about the appeal process copied from https://www.alberta.ca/appeal-court-of-kings-bench:

     

    If you lose your court case, you can file an appeal, in which the court’s original decision is reviewed and may be reversed or changed. When making an appeal, you must show that the previous decision-maker made a factual or legal error that affected the outcome of your case. An appeal isn’t a new trial or a way to re-hear your case.

32. Dec 20, 2023 - a further round of fund raising is successful for residents to be able to keep our lawyer engaged and to respond to the appeal. 
33. Jan 8, 2024, lawyer for residents, Peter Major, submitted our written argument (the “Factum) opposing the golf course's request for appeal as scheduled. The Town of Cochrane did also. Peter says the Court is now going to provide us with a date for when the application for appeal hearing will be set. "It will not be decided just by the written materials.”
34. Mar 29, 2024 -an appeal date is set for June 12, 2024. We'd like as many residents as possible to be in attendance in the courtroom to show our resolve.
35. Jun 12, 2024 - court of appeal hearing.  The court room is standing room only, Tom Hong also present. Three appellate court hear oral arguments from 10am to 12:30pm.
36. Jun 26, 2024 - We just learned that the Golf Course’s appeal has been rejected by the Appeal Court! “The decision was just released this morning. The appeal was dismissed and the Restrictive Covenant lives on,” says our lawyer Peter Major.  Next step is to attempt recover some of our legal costs from CGC.

Please note, we require your financial support. Legal battles are expensive and it is only fair that the cost be borne by all that benefit, not just a few. 

If you want to preserve your property value, your golf course, your community, your greenspace, and your town's amenities, if you want to stand shoulder-to-shoulder with your neighbours in this fight, show your financial support and solidarity and visit our pledge page by clicking here.  

As a Riverview resident, you don't have to be named in the court proceedings, but a fair expectation exists that we are all in this together. There are 411 property addresses in Riverview and in our database. What does your contribution record show?

You can e-transfer your financial contribution to SaveCochraneGolfCourse@gmail.com  

Please include your name and property address.

You will get an auto-deposit notice.

Legal respondents have been asked to contribute $1500 so far as more legal expenses to come.

Chestermere's Lakeside Golf Course - City Council shoots down a new proposal

From the Calgary Herald, Oct 21, 2023, Chestermere residents are hoping a council decision against a proposed development on the local golf course is the final nail in the coffin for what has been a years-long scare for local golf enthusiasts and homeowners abutting the fairway.  

You can read more about it here:  https://calgaryherald.com/news/local-news/golf-course-development-denied. 

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More importantly, it is important to compare and contrast what is going on in Chestermere vs. in Cochrane. In Chestermere - unlike Cochrane - there is and was no legal agreement between the owners and the City nor residents that prevents the golf course ownership from attempting to redevelop all or a portion of their golf course property. 

But to redevelop the land, the proposed developer (Slokker Homes) must first obtain permission to rezone the land per the applicable land use bylaw to - say - multifamily residential as an example.  Under the Municipal Government Act, a city / town government must still process a request for redevelopment and that typically requires a Public Hearing. In the public hearing referred to in the Calgary Herald article for Chestermere, upon conclusion the City Councilors voted to reject the revised development proposal.  But note that the mayor added, “Although this development proposal was turned down (Tuesday Oct 17, 2023), there is still work ahead of us to find a forever solution that is agreeable to all parties.”  This is because the land owner can always try again.

In Cochrane, way back in 2003 when Dennis Hong purchased the golf course, there was nothing that prevented him from doing exactly what Slokker Homes has been trying to do in Chestermere. But Dennis Hong also met stiff opposition from residents in public hearings 2004-2006, and as part of getting his Cochrane Golf Club (CGC) driving range redevelopment approved into a subdivision, he entered into a legal agreement with residents and the Town of Cochrane that effectively said “no further non-golf-related redevelopment activity” if you give me my approval.  That agreement was registered on the CGC land titles as a Restrictive Covenant, and the Town approved his rezoning request in 2007.  

Now fast forward to 2019/2020, Tom Hong (son of Dennis and a former COO of Slokker) applies to the Town of Cochrane with a redevelopment / rezoning application.  Wait-a-minute says the Town, you need to deal with Riverview residents / RC first… you agreed back in 2006 with us and them that there would be no further requests to redevelop … 

This rejection to consider a rezoning application by a Municipal Government was likely what prompted the Cochrane Golf Club to challenge the Restrictive Covenant in Court. In June 2023, the case was heard and the trial judge concluded that the RC was indeed enforceable - that CGC had already taken the benefit of the approval.  CGC has appealed that decision.

Court of King's Bench Alberta Rules the Restrictive Covenant Remains Enforceable

Judge Johnston of Court of King's Bench Alberta released her decision today June 19, 2023 on whether  or not the Restrictive Covenant preventing further non golf-related development remains enforceable. 

In her written 13 page written judgment, Judge Johnston indeed confirmed on all arguments that the Restrictive Covenant is valid and remains enforceable, and dismissed the Cochrane Golf Club application. The Town of Cochrane and Jennifer Foy et al have prevailed (so far). 

The Cochrane Golf Club has 30-days in which to file an Appeal, should they chose to (likely). 

Cost recovery requests to be submitted in 30 days.

Another one bites the dust ....Kelowna Springs Golf Course

A staple within the Kelowna golfing network of courses for 32 years may soon disappear. 

A Vancouver developer recently signed a contract of purchase and sale for the property with the intention of eventually turning it into industrial land. "Commercial real estate is every bit as hot as residential," added Commercial realtor Chad Biafore," and residential remains as hot as it has ever been."

For more info see :

https://www.castanet.net/news/Kelowna/359008/Developers-have-signed-a-contract-of-purchase-for-Kelowna-Springs-Golf-course

https://www.castanet.net/news/Kelowna/376709/Owners-of-Kelowna-Springs-Golf-Course-approached-city-about-commercial-or-industrial-land-use-designation

https://www.kelownadailycourier.ca/news/article_3d543cf6-2301-11ed-9731-3b9762cf3c89.html

https://www.kelownanow.com/watercooler/news/news/Kelowna/Save_it_or_pave_it_Kelowna_Springs_Golf_Course_s_future_looks_industrial/

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Note the headline in the last link, SAVE IT ... OR PAVE IT    (Cochrane residents - we need your financial support to defend the Restrictive Covenant before it is too late> DONATE NOW )

Lawn signs spring up!

The sun started shining and the lawn signs mentioned in our mid-June 2022 legal update arrived about the same time and are starting to pop up in the neighbourhood in backyards facing the golf course in key locations and on the street.

The QR code and the website address on the sign direct the curious to www.SaveCochraneGolfCourse.org where they can find information and background on the residents' legal fight to preserve the restrictive covenant put in place to stop any further non-golf-related development of golf course lands, and requesting financial support. Please share and please contribute!

Whether a Riverview Greens resident, a Cochranite, or an avid golfer from elsewhere, we are all in this together. Take action now and pledge your financial support, or risk loosing it. 

You can e-transfer your financial contribution to SaveCochraneGolfCourse@gmail.com  

Please include your name and property address.

You will get an auto-deposit notice.

THANK YOU!!!!!

A Realtor's perspective on the RC legal battle

This is a guest post by long time Riverview resident and Realtor Denise Staples 

“As Riverview residents, the fact we have a golf course and restaurant/pub is an asset to the neighbourhood for all of us, including buyers moving into the area and for sellers selling. As residents we should be showing support for this gold nugget in our neighbourhood.

The golf course owners are business men, and business men do not look at our emotional well being, but more what dollars they can get from a property they buy and sell. They can use those revenues to further improve this golf course, or they can use the Riverview course as a revenue source and reinvest the proceeds in other projects. Either way, the profitability of this golf course is a win-win — for us and for them.

It is an asset for the golf course to have a great restaurant, and it is a benefit to locals here as well. The restaurant we have (Lucky Penny) is great, and so is the food. By supporting the restaurant we are making sure they are able to pay their rent; they are able to continue generating revenue for the golf course while serving our community.

So when the idea of hosting a golf tournament fundraiser was mentioned at the TownHall…why not? Meetings could be hosted there...why not? Enjoying the awesome outdoor patio...why not? Who better to show we want the golf course to remain a valued amenity in our community than the residents of our community? Ordering food or sitting in the restaurant...why not? Who better than Riverview to support?

We will not be letting go of the restrictive covenant, but we can help the golf course thrive. Revenue is important to the golf course owners. The more of us that support these community gems, the more we all stand to benefit.

Sometimes bringing positivity to an otherwise negative situation can be good for all in the end. Just reaching out with another perspective."

-DS