Superior Court of Justice - Ontario (Divisional Court)

Court File No.: 151/02 Date: 2002-12-06

In the Matter of the Expropriations Act, R.S.O. 1980, c. 148, as amended

Re: Michael Zygocki Limited, Claimant (Appellant) And: The Corporation of the Town of Whitby, Respondent (Respondent)

Before: Carnwath, Whalen & MacDougall JJ.

Counsel: Jonathan H. Wigley, for the Claimant/Appellant Gabrielle K. Kramer, for the Respondent/Respondent

Heard: December 2, 2002

Endorsement

[1] The appeal is allowed and the matter is remitted to the Board for a hearing. The costs order of the Board on the motion appealed from is quashed and the costs of the motion are remitted to the Board on the hearing directed in these reasons. Costs of this appeal to the appellant fixed at $5,000, plus GST.

Reasons

[2] The standard of review is correctness.

Dell Holdings v. Toronto Area Transit Operating Authority (1997), 142 D.L.R. (4th) 206 (S.C.C.) at pp. 224-5.

[3] We reject the submission that the word "acquire" in s. 1 (1)(a) of the Expropriation Act means something other than a compulsory taking. The Expropriation Act s. 1 (1)(a) applies only where the statutory power has a continuing intent to expropriate. The Town never formed the intent to expropriate as it was able to negotiate the dedication of the lands by agreement. Roux v. County of Peel (1973), 4 L.C.R. 282 (Ont. L.C.B.); 5 L.C.R. 90 (Ont. C.A.); and Reading v. R. (1979), 10 L.C.R. 196 (Ont. C.A.).

The Board was correct in finding that the appellant voluntarily dedicated the land to the Town.

[4] On p. 5 of its reasons, the Board found "there was no taking or land acquired as per sections 1(a) or 1(b) of the Expropriations Act". We accept the submission of the appellant that the Board was incorrect in stating that s. 1(b) contemplated a taking or an acquisition of land. Rather, s. 1(b) contemplates an action for injurious affection where no expropriation has taken place. Having so concluded, the Board found it had no jurisdiction to hear the appellant's Notice of Arbitration and Statement of Claim. The Board was incorrect in so finding and for that reason alone, the matter must be remitted to the Board for a hearing.

[5] With respect to the further findings and conclusions "offered" by the Board, we find as follows:

(a) On p. 6 of the Board's reasons, the Board found that the Development Agreement "required that access be available from Garden Street to the Zygocki site". This finding is incorrect in that the Development Agreement makes no reference to access in any of its provisions.

(b) Section 22(1) of the Expropriation Act requires that a claim for injurious affection shall be made by the person suffering the damage or loss within one year after the damage was sustained or after it became known to the person. The Board found that Mr. Zygocki's claim was too late. In construing s. 22, the Board was incorrect in finding the time ran from 1995 or 1996. We find merit in the argument that the time should run in this case from the completion of the underpass construction. We accept the submission that the words "after it became known" relate to the discovery of the actual damage subsequent to its occurrence, not to a pre-construction opinion that there might be some damage if a project is built.

(c) We are persuaded the Board was incorrect in finding the appellant had not furnished sufficient particulars within the meaning of s. 22(1). We accept the submission that sufficient particulars were given to allow the municipality to know of the existence of the claim and its nature, that is to say, insufficient access; to allow the municipality to preserve the evidence relating to access, design, grades, etc.; and to allow the municipality to consider solutions to the issue raised by the appellant.

[6] The respondent submits the Development Agreement made between the appellant and the Town is a full answer to the appellant's claim for injurious affection, in that paragraph 12.2 provides that the owner "hereby waives any right or claim which it now has or may hereinafter acquire which is inconsistent with the terms of this Agreement". We are not prepared to make a finding on this submission as it is our view the question is an evidentiary one for the full hearing.

CARNWATH J.

DATE: 20021206