DIVISIONAL COURT FILE NOS.: 241/04 and 331/04
DATE: 20051019
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, JENNINGS AND MOLLOY JJ.
B E T W E E N : )
RE: 241/04: )
BASE NINETY DEVELOPMENTS LIMITED, ) Thomas C. Marshall, Q.C.
SKYTAL LIMITED, DANALBERRY ) for the Appellant
DEVELOPMENTS LIMITED AND NEWMARK )
DEVELOPMENTS LIMITED )
Claimants (Respondents) )
-and- )
HER MAJESTY THE QUEEN IN RIGHT OF ) Stephen Waqué and Sean Gosnell
ONTARIO AS REPRESENTED BY THE CHAIR ) for the Respondents
OF THE MANAGEMENT BOARD OF CABINET )
Respondent (Appellant) )
AND RE: 331/04: )
LOUIS W. SPENCER IN TRUST, ARTHUR )
RESNICK IN TRUST AND MARVIN BARKIN )
IN TRUST )
Claimants (Respondents) ) Heard: May 11, 12 and 13, 2005
-and- )
HER MAJESTY THE QUEEN IN RIGHT OF )
ONTARIO AS REPRESENTED BY THE CHAIR )
OF THE MANAGEMENT BOARD OF CABINET )
Respondent (Appellant) )
R E A S O N S F O R J U D G M E N T
LANE J.:
[1] Her Majesty the Queen in right of Ontario, as represented by the Chair of the Management Board of Cabinet (the “Crown”) appeals from the decision of the Ontario Municipal Board (the “Board”) dated February 6, 2004, following arbitration under the provisions of the Expropriations Act,[^1] (the “Act”), in which Base Ninety Developments Limited, Skytal Limited, Danalberry Developments Limited, and Newmark Developments Limited (together, the “Base Ninety Claimants”) were awarded $1,433,701.00, plus interest, as compensation for injurious affection of certain lands in Oakville.
[2] The Crown also appeals from the decision of the Board dated April 30, 2004, following arbitration under the Act in which the Claimants Louis W. Spencer et al. (the “Spencer Claimants”) were awarded $3,444,625, plus interest, as compensation for injurious affection of certain lands in Burlington.
[3] The Crown asks that these appeals be allowed and the decisions of the Board amended to provide that the claims for injurious affection be dismissed.
[4] These appeals involve different parcels of land but similar factual and legal issues and were therefore heard together. Each case arises from the expropriation of a portion of a parcel of land for the construction of Highway 407, resulting in the bifurcation of the lands remaining in the hands of the respective Claimants. In each case, it is alleged that the part of the remaining lands lying to the north of the highway was excluded from the possibility of being included in the urban area by the construction of the highway and was thereby injuriously affected.
[5] Injurious affection is a creature of statute, specifically the Act, section 1, which defines the term, so far as is relevant to these appeals. Injurious affection means:
(a) where a statutory authority acquires part of the land of an owner,
(i) the reduction in market value thereby caused to the remaining land of the owner by the acquisition or by the construction of the works thereon or by the use of the works thereon or any combination of them, and
(ii) [omitted]
PART ONE
The Base Ninety Facts
[6] On April 16, 1999, (the agreed valuation date) a Plan of Expropriation was registered expropriating approximately 12.62 acres of the Base Ninety Claimants’ land from a larger holding of approximately 104.869 acres. The lands were expropriated for the purposes of constructing a portion of the new Highway 407. As a result of the expropriation, the Claimants’ remaining land was bisected. One parcel lay to the north of the highway (which has now been built) and the other to the south. The Claimants brought their claim for compensation to the Board, which ordered the Crown to pay the market value of the lands which were taken, and damages for injurious affection for both the North and South parcels. This appeal is only as to the award for injurious affection of the North parcel.
Planning Background of the North Parcel
[7] At the valuation date, the Base Ninety Claimants’ lands were subject to the Halton Official Plan (1995). The expropriated lands and the North Parcel were designated “Parkway Belt Corridor”, and the South Parcel was designated “Halton Urban Structure Review Study Area”. The urban boundary for Oakville was established at Highway #5 (Dundas Street). There were no improvements on the North Parcel and it was largely used for farming.
[8] Halton approved Regional Official Plan Amendment No. 8 - Halton Urban Structure Plan (“ROPA 8”) on June 2, 1999. While this amendment was enacted a few weeks after the valuation date, all witnesses agreed that its imminent approval was universally expected at the time of the valuation date. ROPA 8 retained the “Parkway Belt Corridor” designation for the expropriated lands and the North Parcel, but redesignated the South Parcel from “Halton Urban Structure Review Area” to “Urban Area”, effectively pushing the urban boundary north from Dundas Street to the south limit of the Highway right-of-way.
[9] A right of way over the Base Ninety Claimants’ lands for highway purposes had been designated under the provisions of the Highway Improvement Act in 1962 and in 1976 the route was further designated as a controlled access highway. These lands were also subject, except for the South Parcel, to the terms of the Parkway Belt West Plan (the “Belt Plan”), established by legislation in 1973 and fleshed out by a detailed Plan in 1978. The Belt Plan was designed to provide a system of open space and recreational facilities linked to each other; to provide a land reserve for future “linear facilities” and other uses; to provide links between urban areas by providing space for the movement of people, goods, energy and information; and to separate and define the boundaries of urban areas.[^2] The North Parcel fronts on Burnhamthorpe Road, which is also the north limit of the Belt Plan. There was evidence before the Board of a number of instances where lands to the north of the proposed highway had been released from the Belt Plan and that such releases depended to some extent on the determination of the final limits of the land to be acquired.[^3]
[10] The Base Ninety Claimants maintained before the Board that the North Parcel had been excluded from the urban area of Oakville solely because the establishment of the Highway provided a “hard edge” which the Town adopted as the boundary. But for the creation of this hard edge, the urban boundary of Oakville would have been set at Burnhamthorpe Road and the North Parcel would have been inside the urban area and available for development.
[11] The Crown argued to the Board that the North Parcel was never likely to be available for development because the Belt Plan precluded it. The Belt Plan was intended to create an area between Oakville and the adjacent town of Milton to separate them and identify them as separate towns, a long-term planning goal. Both the Belt Plan and the designation of the highway long preceded the acquisition of the lands by the Base Ninety Claimants and the expropriation. That the highway limit was adopted by the local planning officials as an appropriate limit to urban development created no new consequences to the Claimants and no compensation was payable. The Crown submitted that the award of compensation for injurious affection in the circumstances of this case is without authoritative judicial precedent in providing compensation where the
Claimants have suffered no discernible loss or damage as contemplated by the Act.
The Findings of the Board
[12] The Board accepted the uncontradicted evidence of Peter Walker, a professional planner who testified for the Base Ninety Claimants as to the likely placement of the Oakville urban boundary in the absence of the highway. Mr Walker testified that in the late 1980s there was growing pressure for urban expansion in Halton Region and a study produced the Halton Urban Structure Plan (“HUSP”) which identified North Oakville as a primary area for urban expansion to the north of Dundas Street. ROPA 8 in fact pushed the urban limit to the southerly limit of the planned highway. In determining the siting of urban boundaries, Oakville and the Region looked for appropriate hard edges such as roads or valley lands. In the area of the Base Ninety Claimants’ lands, absent the highway, the only available hard edge was Burnhamthorpe Road, which was also the municipal boundary of the Town of Oakville. Mr. Walker opined that, if the highway had not been constructed, the urban boundary would logically have been at Burnhamthorpe Road.
[13] The Board also accepted the evidence of Ms. Ruth Victor, a professional planner who, when employed by Halton Region, had supervised the actual delineation of the urban boundary at the time of ROPA 8. She testified that it was the physical edge of the highway 407 which determined the placement of the urban boundary. The Belt Plan was not an important factor in this determination because removal of lands from that Plan for urban uses was regarded as an “administrative” matter. Mr. Walker also gave evidence, which the Board accepted, that lands were readily removed from the Belt Plan once the actual requirements of land for the highway were finally determined. The Board found that the pattern of amendments to the Belt Plan supported this evidence convincingly. Absent the highway, there would have been a high probability of the removal of the Base Ninety Claimants’ lands from the Belt Plan at the time of ROPA 8. At page 11 of its reasons, the Board concluded:
Accordingly, the Board finds that, in the absence of Highway 407, there is a more than 50% probability that the north limit of urban development would have been Burnhamthorpe Road, and that the Claimants’ lands all would have been within the urban boundary.
[14] The Board accepted the uncontradicted evidence of Mr. Robson, appraiser for the Base Ninety Claimants, that, if within the urban boundary, the North Parcel would have been worth $35,000 per acre, discounted by 15% to account for the cost and risk associated with obtaining its removal from the Belt Plan. The value of the table-land portion of the North Parcel without the Highway was therefore $29,750 per acre, or $1,920,660. As a result of the presence of the Highway the North Parcel would not enjoy development potential in the foreseeable future and its present highest and best use was agricultural. Sales of local land without development potential were in the $7500 per acre range, or some $484,200. Hence the loss to the Base Ninety Claimants by reason of the presence of the Highway was $1,436,460.
PART TWO
The Spencer Facts
[15] The Spencer lands are located in the City of Burlington in the Region of Halton, between Appleby Line on the east and Walkers Line on the west on the south side of No. 1 Sideroad, which farther to the east becomes known as Burnhamthorpe Road. These lands, prior to the expropriation, totalled some 300 acres. On April 16, 1999, the present appellant expropriated 19.43 acres for the right of way for Highway 407. This expropriation divided the remaining Spencer lands into two parcels, one to the south of the highway and one, the subject of this appeal, to the north (the “North Parcel”). A significant woodlot extends across the North Parcel south of the No. 1 Sideroad. The Spencer Claimants seek compensation for injurious affection of that portion of the North Parcel lying between Highway 407 and the south edge of the woodlot.
Planning Background of the North Parcel
[16] Like the Base Ninety Claimants’ lands, the Spencer Claimants’ lands had long ago been subject to a partial designation for highway purposes and the North Parcel is within the Belt Plan. The parties to the Spencer claim entered into an Agreed Statement of Facts which provided that the urban boundary of the City of Burlington would have been the south limit of the woodlot had Highway 407 not been physically present, but that with the Highway present, its south limit is effectively the urban limit of the City.
[17] In these circumstances, the Spencer Claimants say that, because there is no access from either the north, due to the woodlot, nor from the south, due to the Highway, the entire development potential of the Spencer North Parcel is lost.
The Findings of the Board
[18] The Board found that there had been injurious affection of the North Parcel by reason of the taking of the portion expropriated. It found that there was a likelihood that the North Parcel would have been removed from the Belt Plan and reduced the value by 15% for the cost and delay of so doing. The Board found that, but for the Highway, the urban boundary of Burlington would have been set at least at the southern boundary of the woodlot. It awarded $3,444,625 for injurious affection of the North Parcel.
PART THREE
The Mikalda Farms Case
[19] Both the Board member hearing the Base Ninety case, Mr. Makuch, and the member hearing the Spencer case, Mr. Boxma, expressly followed the methodology established by the Board in Mikalda Farms[^4] in reaching their valuations. Mikalda Farms Ltd. was the owner of lands immediately adjacent to the Spencer Claimants’ lands and subject to the same zoning and Belt Plan considerations. Its land was divided by the Highway into a southerly urban component, and a northerly rural component subject to the Belt Plan. Its case for compensation was heard in 2001.
[20] The Mikalda Board accepted that the existing jurisprudence[^5] required it to value the injurious affection of the northerly component with the Belt Plan in place, but observed that, when the Salvation Army Board came to consider that case after the Court of Appeal sent it back to the Board to calculate the injurious affection, that Board had considered whether there was any likelihood of an amendment to the designation of the subject lands as part of the Belt Plan. On the evidence, it had found that such a change was probable but would be delayed and made more costly by the existence of the hydro line, and awarded a 20 per cent loss of value in the remaining lands due to the acquisition of the lands for that line and the existence and operation of it. Similarly, in Parks[^6] the Board found that it was the presence of the Highway 416 and not the planning situation that truncated the development possibilities for the claimant’s land; in the absence of the highway, there was a more than 50% probability of future urbanization in a 10 to 15 year horizon.
[21] In Mikalda itself, the Board accepted the evidence of the witness Robson who found that the value of the northerly rural area subject to the Belt Plan was $50,000 per acre after applying a discount for the impact of the Belt Plan. He then considered the impact of the physical barrier created by the presence of the Highway 407 on that value and concluded that the barrier created by the highway reduced the value of the northerly lands to $15,000 per acre. The Board commented that this method assumed the Belt Plan and did not screen it out. The Board accepted his evidence, saying:
Mr. Robson in arriving at the value of $15,000 per acre, for instance took into account the costs, risks and challenges an owner would face to delete lands from the Parkway Belt West Plan, with the physical barrier of the Highway 407 in place, and the impact of the delay in the development opportunity caused by it.
[22] The decision of the Board in Mikalda was not appealed.
PART FOUR
Jurisdiction of this Court
[23] Our jurisdiction arises from section 31 of the Expropriations Act. An appeal lies on an issue of law or fact or both and we may remit the matter to the Board or make any decision or order that the Board has power to make (section 31(2)).
Standard of Review
[24] In Ayerswood[^7] the Court of Appeal concluded that the standard of review for a Municipal Board decision was correctness as to general questions of law where the Board has no special expertise, and reasonableness where the Board’s expertise is engaged, such as when it is dealing with its home statutes. This Court held in the recent case of Lee Brothers[^8] that the standard of review of a Board decision as to business loss due to expropriation, a subject analogous to the present problem, was reasonableness. The Board was exercising its specialized function and was entitled to deference. The court found that the Board’s preference for one expert over another was reasonable and dismissed the appeal.
[25] Considering the Pushpanathan[^9] factors, there is no applicable privative clause as section 96(4) of the Board’s Act applies only to judicial review. The appeal provision noted above is very broad, which implies a less deferential standard. The Board’s expertise in the area of compensation for expropriation and related matters is well accepted. The purpose of the Board’s Act is to remove expropriation disputes from the courts to this specialized tribunal. The nature of the problem before us is mixed law and fact: whether the Board has awarded compensation for the inclusion of the lands in the Belt Plan as the Crown says; or, as the claimants say, for the actual taking of other lands thereby affecting these lands, and for the construction and operation of the highway.
[26] This is an appeal and not a judicial review and the court is obliged to test the conclusions somewhat searchingly. It appears to me that the standard of review for the factual component of these issues is reasonableness, with deference to the Board’s role as finder of fact, including the amounts awarded; and for the legal component, correctness as to the power to make the award based on the facts as found.
PART FIVE
Analysis of the Issues Before Us
[27] The appellant summarized the issues in its factum as follows:
It is submitted that the Claimants have not suffered any damage, loss, or injury that is compensable under the provisions of the Act.
The lands comprising the North Parcels are in the Parkway Belt Plan, and subject to its terms. There is no reasonable prospect of these lands being released from that Plan. The Plan defines the uses to which these lands can be put, and therefore the value of the lands in the market place.
These lands have never had any realistic potential for urban development. This assertion, in fact, is not disputed. Only in the entirely hypothetical circumstances, reflected in the Board’s decision, is there a case made out for a “loss” (injurious affection).
The relevant definition of “injurious affection” is found in section 1(1)(a)(i) of the Act and reads as follows:
“Where a statutory authority acquires part of the land of an owner, (i) the reduction in market value thereby caused to the remaining land of the owner by the acquisition or by the construction of the works thereon or by the use of the works thereon or any combination of them”
It is submitted that “injurious affection”, as defined in the Act, addresses only the real, practical, and concrete impacts of the expropriation where there is a necessary causal connection between the expropriation and the loss in market value. Here the subject lands have been subject to the provisions of the Parkway Belt Plan for over 20 years, since 1978, and the fact of the expropriation did not, in any respect, reduce the market value of these lands that they enjoyed prior to the expropriation.
It is submitted that, as a result of decisions made as early as 1962 (the designation of a future highway right-of-way), the advent of the Parkway Belt planning process in 1973 resulting in the 1978 Plan, and the independent planning decisions of the host municipalities, these lands were never proposed for, or designated for urban development. The consequences of these activities do not attract an obligation on the part of government to pay compensation.
[28] Thus it is the Crown’s position that the value of these lands was fixed at “rural, not for development”, levels by the planning legislation and steps referred to above. Therefore the subsequent actual taking of the lands for, and actual construction of, the Highway 407 had no adverse effect upon land values. They were already fixed forever at the rural level. The claim for compensation was actually a claim for the down-zoning of these lands that had taken place over many years prior to the actual taking, and not for the adverse impact of the taking itself.
[29] The respondent Claimants before us submitted that, while the Crown made the above submissions to the Board, the evidence did not support the Crown’s position. The Board, in each of the decisions, found as a fact that there was a significant probability of removal of the relevant lands from the Belt Plan once the actual requirements of the Highway 407 were finally established, and cited a history of such removals in support. The Board found that, but for the physical presence of the Highway 407, each of the parcels under review had development potential. There was ample evidence before the Board to support these findings and, accordingly, they could not be disturbed.
[30] In my view, the respondent claimants are correct in these submissions. The analysis of the Crown witnesses did not consider the possible deletion of the two parcels from the Belt Plan because they were instructed not to do so. To the extent that the Claimants’ witnesses relied upon future changes in zoning and Belt Plan restrictions, there must be a realistic potential for such changes at the date of the taking to support the consideration of such changes as affecting value on that date. This is the exact finding that the two Boards made. Far from being “entirely hypothetical”, as the Crown submits, the Boards found that the prospect of the removal of the Belt Plan restrictions on the use of these lands was real. In the Spencer decision, the Board at page 8 found expressly that:
But for the expropriation and the construction of Highway 407, the Board finds that the urban boundary would have been set at No. 1 Sideroad, or, at least, the southern boundary of the woodlot. The Board prefers, and accepts, the evidence of Walker and Victor in this regard.
[31] In other words, the Board found that the restrictions on which the Crown relies were not the effective reason why development of the Spencer lands was not now realistic; rather it was the physical presence of the Highway 407 that had destroyed the development potential. The Base Ninety Board made the same finding in respect of those lands. The evidence supports the Board’s findings in both cases. In Spencer, Mr. Potter gave evidence of specific costs related to the physical presence of the Highway, including the cost of an east-west road for access, the need for a bridge over a creek, the requirement for noise barriers, extra costs in bringing services to the lands and costs to deal with water accumulating north of the Highway. Mr. Walker referred to the physical barrier created by the Highway, its use as a hard edge to define the urban area and the reluctance to permit urban development to leap over it, saying “..in Halton Region you don’t easily contemplate jumping 407 with urban development.”[^10] He gave similar evidence in the Base Ninety hearing, which was also accepted by that Board.
[32] In the Base Ninety hearing, Mr. Robson gave evidence that the highest and best use of the North Parcel, in the absence of the physical barrier of the Highway 407, was as a holding for future urban development after release from the Belt Plan[^11]. Urban development, were it not for the highway, probably would have extended to Burnhamthorpe Road and the North Parcel would have been a speculative holding for a future serviced urban development. After the taking and in the light of the physical barrier of a 420-foot-wide road corridor, the area is more of a buffer zone and there is now realistically no urban development potential for the foreseeable future. Again, this evidence supports the findings of the Board that there was a real injury to these lands by the taking and construction and operation of the Highway 407. The Board accepted the evidence including Mr. Robson’s 15% discount for the time and expense of obtaining the removal of the North Parcel from the Belt Plan.
[33] Our attention was drawn to the existence of other evidence, especially that of Mr. Wong, coming to different conclusions than those accepted by the Board. However, the Board is entitled to some deference as the primary trier of fact with the advantage of seeing the witnesses and engaging in close scrutiny of the whole of the testimony over several days of hearings. It was not demonstrated that either of the Boards misunderstood or ignored crucial evidence. Indeed the reasons in each case demonstrate a close understanding of the issues.
[34] In my view, the evidence does support the Boards’ conclusions that there was a significant probability, in the absence of the actual construction and operation of Highway 407, that these lands would have been released from the Belt Plan restrictions and could have been developed for urban uses. It was for the loss of this opportunity that the Boards compensated the various Claimants in these two cases, and not for the historical down-zoning of the Parcels as the Crown contends. The findings of the Boards do not “ignore the existence of the Parkway Belt Plan” and accordingly grant compensation for the lands having been included in that Plan, as the Crown submits[^12]. On the contrary, the evidence on which the Boards base their similar findings directly addresses the issue of whether in fact the loss of value was caused by the planning designations or by the actual taking, construction and operation of the Highway. The Crown disagrees with the conclusions of these witnesses, but the Boards did not, and the evidence supports their findings.
[35] The Crown relied on the decisions of this Court and of the Court of Appeal in Salvation Army[^13] as demonstrating that no compensation is payable for the inclusion of lands in a plan such as the Belt Plan. At page 717, Finlayson J.A. said:
The real complaint of the Salvation Army related to the Parkway Belt West Plan and its effect on land values, but it is well accepted that such a plan does not give rise to compensation provided the planning authority acts in good faith.
[36] The difficulty with the Crown’s submission is that, unlike the Board in Salvation Army, these Boards have not compensated the Claimants for the inclusion of their respective lands within the Belt Plan, but for the loss (by reason of the taking of some land, the bifurcation of the former parcel and the actual construction of the highway) of the opportunity to have them released from the Belt Plan for urban uses. In Salvation Army, this Court referred the matter of injurious affection back to the Board to address it upon proper principles, an order which the Court of Appeal affirmed. That case is not authority for any submission that injurious affection cannot be found whenever the lands affected are the subject of such a plan.
[37] In the final act of the Salvation Army case, the OMB described its task, in the light of the several decisions in this court and the Court of Appeal, as follows:[^14]
… to determine whether any, or a part, of the reduction in market value of the 50.593 acres was caused by the acquisition or by the construction of the works or by their use or any combination thereof. The board must now recognize the plan as being in place for this purpose as the result of an independent planning process without any direct link to the subject acquisition by Ontario Hydro. Therefore, it follows that consideration should be given to the likelihood of an amendment to the designation of the retained land in the plan and any effect on its value of the acquisition for and/or the use of the hydro line: [citations omitted]. However, consideration by this board of the likelihood of amending the plan, must include, not disregard, the fact of the hydro acquisition and use of the lands on the southerly side of the 50.593 acres because it has been held in both courts that s. 14(4)(b) applies only to the valuation of the lands taken, not to the determination of injurious affection, and s. 14(3) does not alter or exempt from that conclusion of law.
[38] It is the case that injurious affection must be assessed with the Belt Plan in place, but that requirement does not rule out analysis of whether the Plan that is in place may, on evidence, be found likely to be changed, or the land excluded from it. Nor does it rule out analysis as to whether the loss alleged was in fact caused by the Plan or was caused by the actual construction of the highway. The two Boards in the instant appeals made no error in law in approaching the cases as they did.
Summary and Disposition
[39] In these two cases, the presence of the planning documents -the highway designation and the Belt Plan - no doubt reduced the sale value of the parcels in question. But the evidence shows that highway corridor lands not required for the highway have been regularly released for urban development. There is no reason to doubt that an opportunity existed to some degree for that process to occur with these parcels. What is special about these parcels, as the two Boards found, is that the physical presence of the constructed highway rendered the parcels no longer suitable for urban development due to physical and cost factors. Therefore the opportunity to obtain release and to develop for urban use was lost at the time of, and because of, the physical construction of the highway. That is a loss directly due to the construction of the highway and so is within the meaning of the term injurious affection as defined in the Act.
[40] In my view, it is on these facts and not on any misapprehension of the law that the Boards’ decisions are based. The evidence supports the Boards’ findings of fact that the cause of those losses for which compensation was given was the physical presence of the highway. The findings are reasonable and we ought not to interfere.
[41] For these reasons, I would dismiss these two appeals. Pursuant to the Expropriations Act the Claimants should have their costs on a substantial indemnity basis.
Lane J.
Jennings J
Molloy J.
DATE:
[^1]: R.S.O. 1990, c. E-26 [^2]: Parkway Belt West Plan; Government of Ontario, 1978, section 2 “Goals” [^3]: Claimants’ Compendium, pages 7 (map) and 192. [^4]: Mikalda Farms Limited v. Ontario (Management Board of Cabinet) (2001) 75 L.C.R. 274 (O.M.B.) [^5]: In particular Salvation Army, Canada East v. Ministry of Government Services (1984) 1984 1884 (ON SC), 31 L.C.R. 193 (Ont. Div. Ct.); (1986) 53 O.R. (2nd) 704 (Ont. C.A.). [^6]: Parks v. Ontario (Ministry of Transportation) (1995) 56 L.C.R.166; aff’d 62 L.C.R. 252 (Ont. Div. Ct.) [^7]: London (City) v. Ayerswood Development Corp. 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.) [^8]: Lee Brothers et al. v. City of Windsor Div. Ct., April 20, 2005 [^9]: Pushpanathan v. Canada (Minister of Employment and Immigration) 1998 778 (SCC), [1998] 1 S.C.R. 982. [^10]: Evidence of Walker, June 12, 2003, page 17. [^11]: Robson transcript pages 4-14, 4-15, 4-33 and 4-35. [^12]: Base Ninety Crown factum paragraphs 29 to 41. [^13]: Re Salvation Army (Canada East) and the Minister of Government Services (1984) 1984 1884 (ON SC), 48 O.R. (2nd) 327 (Div. Ct.) aff’d (1986) 53 O.R. (2nd) 704 (C.A.) [^14]: (1990) 44 L.C.R. 302 at 308 (O.M.B.)