ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GRAVELY, CARNWATH AND HIMEL JJ.
B E T W E E N:
RONALD LINDEN
Claimant/Respondent
- and -
CITY OF TORONTO
(improperly named as The Corporation of the City of Toronto)
Respondent/Appellant
Paul R. Henry and Robert B. Lawson, for the Claimant/Respondent
Patricia H. Simpson, for the Respondent/ Appellant
HEARD: October 1, 2004
GRAVELY J.: (Orally)
1The City of Toronto appeals a decision of the Ontario Municipal Board awarding the respondent Doctor $81,850.00, plus costs for injurious affection caused by the construction of the Sheppard subway near the Doctor’s leased offices.
2The respondent, in effect, cross-appeals on the issue of quantum of damages.
3Counsel for the City takes the position that the OMB should have found that the conduct of the City was not actionable since it was reasonable. As to the assessment of damages, counsel argues there was no causal connection between the alleged damage suffered and the activities of the City, and compensation should not have been awarded for time spent by Dr. Linden searching for new associates.
4Relying on the decision of Athey v. Leonati, [1996] 3 S.C.R. 458, counsel for Dr. Linden argues the Board was wrong in principle in reducing the respondent’s damages by 50% due to the mixed reasons for the departure of Drs. Carr and Allen.
5The standard of review is correctness; was the decision clearly wrong? The approach correctly adopted by the Board was to inquire into the reasonableness of the City’s conduct as its activities impacted on the Doctor’s use and enjoyment of his leasehold interest. The Board was required to balance the competing interests of Dr. Linden in not having his practice disturbed against that of the City which was conducting subway construction for the benefit of the public.
6Determining the issue of reasonableness was uniquely a fact-driven exercise which was decided by the Board against the City after seven (7) days of evidence. There were ample facts to support the decision.
7We find no error in principle in the assessment of damages. The Board made its findings on the evidence and there is no basis for altering the award either by increase or decrease. The Athey case does not apply here.
8The appeal and what is, in effect, a cross-appeal, are dismissed.
9The respondent will have costs on a partial indemnity basis in the amount of $15,000.00, inclusive of fees and disbursements and GST.
___________________________
GRAVELY J.
___________________________
CARNWATH J.
___________________________
HIMEL J.
Date of Reasons for Judgment: October 1, 2004
Date of Release: October 27, 2004
COURT FILE NO.: 308/03
DATE: 20041001
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GRAVELY, CARNWATH AND HIMEL JJ.
B E T W E E N:
RONALD LINDEN
Claimant/Respondent
- and -
CITY OF TORONTO
(improperly named as The Corporation of the City of Toronto)
Respondent/Appellant
ORAL REASONS FOR JUDGMENT
GRAVELY J.
Date of Reasons for Judgment: October 1, 2004
Date of Release: October 27, 2004