Peter A. Hertz

The Ontario Land Tribunal held a Case Management Conference regarding a claim for compensation under the Expropriations Act.

The Tribunal issued a procedural order on consent, establishing the timetable for documentary discovery, mediation, examinations for discovery, and the exchange of expert reports leading up to an eight-day video hearing scheduled to commence on February 1, 2027.

The claimants brought a motion to compel the respondent City to answer questions refused during examinations for discovery.

The questions related to offers made by the City in 2018 to purchase the expropriated property and a neighbouring property.

The Tribunal found that questions regarding the expropriated property were relevant to determining market value and were not protected by settlement or litigation privilege.

Questions regarding the neighbouring property were deemed irrelevant.

The City was ordered to produce appraisal reports and related correspondence concerning the 2018 offer for the expropriated property.

The City of Waterloo brought a motion to vacate the scheduled hearing dates for an expropriation compensation claim and adjourn the proceeding pending the determination of a related Superior Court civil action.

The civil action concerned a prior planning settlement and whether the claimants were obliged to convey a portion of the expropriated lands to the City.

The Tribunal dismissed the motion, finding that it has exclusive jurisdiction to determine compensation under the Expropriations Act and that the title issues raised in the civil action are irrelevant to the expropriation proceeding, as the City acquired full fee simple interest in the entire property through the expropriation.

The Tribunal concluded that the expropriation proceeding can proceed concurrently with the civil action.

Appeals were brought against the approval of an Official Plan Amendment and Zoning By-law Amendment to permit a mixed-use development in Cambridge.

The applicant appealed a Holding Provision in the ZBA that required the realignment of an existing access easement to provide access to an abutting landlocked property.

A neighbouring property owner appealed both instruments, arguing they were premature until interconnected access was secured in the OPA.

The Tribunal dismissed all appeals, finding that the Holding Provision was an appropriate use of section 36 of the Planning Act, supported by the Official Plan, and represented good planning in the public interest by ensuring safe, two-way interconnected access.

The Tribunal declined to modify the OPA, concluding the Holding Provision sufficiently addressed the access issue.

The moving party brought a motion for leave to appeal the order of I.R. Smith J. dated February 25, 2022.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs in the amount of $5,000.

The parties reached an agreement regarding the costs of the appeal.

The Court of Appeal ordered costs to the respondent in the agreed amount of $20,000, inclusive of HST and disbursements.

The appellant property owner appealed a decision granting the respondent municipality a prescriptive easement for a watermain installed on the property in 1979-1980.

The appellant argued the municipality's use was not open, that the burden of proof regarding permission was reversed, and that public authorities with expropriation powers cannot acquire prescriptive easements.

The Court of Appeal dismissed the appeal, finding the application judge reasonably inferred the owners had actual or imputed knowledge of the watermain, the lack of evidence of permission rendered any burden of proof issue moot, and there is no legal bar preventing municipalities from acquiring prescriptive easements.

The plaintiff abandoned its motion for an interlocutory injunction after nearly two years.

The defendants sought costs of the abandoned motion on a substantial indemnity scale, payable forthwith.

The court held that, absent extraordinary circumstances, costs of an abandoned injunction motion are payable forthwith.

Finding no reprehensible conduct by the plaintiff, the court awarded costs on a partial indemnity scale, fixing them at $65,908.61 for the Racer Defendants and $22,713.82 for the Standard Defendants.

The Waterloo Region District School Board appealed an Ontario Municipal Board decision awarding interest to Erbsville Road Development Inc. on expropriated land from the date of draft subdivision approval, rather than the later date of actual expropriation.

The Divisional Court dismissed the appeal, holding that under s. 33(1) of the Expropriations Act, interest can accrue from a date preceding expropriation when the owner ceases to make productive use of the land due to the impending expropriation.

The court found the board member's determination that productive use ceased upon draft approval was reasonable.