COURT FILE NO.: 143/07

DATE: 20070830

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

TOWERHILL DEVELOPMENTS

Applicant

• and -

MINISTRY OF TRANSPORTATION

Respondent

Brian Campbell, for the Applicants

Stephen F. McNamee, for the Respondent

HEARD at Toronto: August 30, 2007

DAY J.: (Orally)

INTRODUCTION

1Following a Hearing of Necessity under the Expropriations Act requested by Towerhill, the Inquiry Officer made a decision upholding a proposed expropriation of parts of the Towerhill property for the construction of a permanent off-ramp from Highway 115 to County Road 28 (Highway 7), together with construction access required to carry out bridge repairs on Highway 115.

2Towerhill requested an adjournment of the Hearing of Necessity pending receipt of additional studies from the County of Peterborough which it expected would address the future of urbanization of the area and traffic flow consequences. The adjournment was denied.

3Towerhill has brought this application for judicial review of the decision of the Inquiry Officer for failure to consider current evidence in order to render a fair, sound and reasonably necessary decision and for failure to grant an adjournment pending receipt of updated reports.

4The Application for Judicial Review would not proceed before the Divisional Court prior to October or November of this year but the expropriation is effective September 5, 2007. Therefore, by the time the Application for Judicial Review would be heard, the question of expropriation would be moot. Both parties have agreed that I, as a single motions Judge be empowered to make findings herein as if the Divisional Court, in order to expedite a decision prior to September 5, 2007.

FACTS

5Towerhill acquired 1706 Moore Drive, Cavan, Ontario (the “Towerhill Property”) on September 16, 2004.

6When Towerhill acquired the Towerhill Property it knew of the interest of the Ministry of Transportation of Ontario (“MTO”) of acquiring a portion of the Towerhill property.

7After acquisition of the Towerhill Property by Towerhill, discussions between Towerhill and MTO for acquisition of a portion of the Towerhill Property by MTO, did not successfully conclude.

8The proposed ramp was analyzed by a Transportation Environmental Study Report (“TESR”) prepared in October 2002. The report was not provided by Towerhill to MTO during the negotiation period. It was found at the Hearing of Necessity that the main reason for expropriation was the need to repair the bridge.

9Towerhill asserts that the TESR report accepted by the Inquiry Officer does not contemplate the now anticipated urbanization of the area in the vicinity of the proposed ramp. Towerhill also asserts that the form of the proposed ramp identified in this report and accepted by MTO and the Inquiry Officer will prejudice Towerhill and foreclose access to Towerhill property along most of the frontage on County Road 28. It also claims that the proposed ramp will also impact urban development in the vicinity of the proposed ramp and is designed to be suitable for a rural, as opposed to an urban environment.

10Towerhill also asserts that the Country of Peterborough is proceeding with a traffic study component (the “County Study”) of an environmental assessment study related to plan improvement to County Road 28 corridor running south on Highway 28 from Highway 115.

11The Inquiry Officer refused to adjourn the hearing in February 2007, for results of an anticipated County Study expected in January, 2008.

ISSUE

12The Applicant moves that the expropriation by the Ministry of Transportation on May 31, 2007, be quashed or varied.

13The applicant’s focus is on the refusal of the Inquiry Officer to grant an adjournment to allow the County Study to play in, which they expect would be in January of next year with no assurances. In aid of its position that the hearing before the Inquiry Officer was premature, the applicant provided correspondence from the County of Peterborough indicating that a study is underway of lands including the Towerhill Property and that the study will relate to traffic and transportation network implications of anticipated growth in the area.

14It is anticipated that the relevant section of the County Study would include investigations of alternatives related to the Ministry of Transportation’s plans for changes to the ramp configuration at Highway 115 and County Road 28.

15While the suggestion for a delay of the hearing may be implied from that correspondence, such is not expressly made.

16Also presented by the applicant is correspondence from Cavan-Millbrook-North Monaghan stating an agreement to initiate an environmental study and transportation study in the affected area. It also advised of being aware of a Hearing of Necessity plan regarding the expropriation proceedings initiated by the Ministry of Transportation. It stated that they would be of the opinion that this hearing would be premature and that the uses and configuration of Transportation requirements may indeed be altered. That information was available to the Inquiry Officer at the time of the hearing.

17A telephone conference was arranged for the morning of February 16, 2007, to discuss adjourning the Hearing of Necessity in advance of that hearing. The telephone conference occurred as scheduled. Mr. Macos did not file any new materials but relied on his earlier correspondence, as well as the letters and documents from the County of Peterborough and from the Township of Cavan-Millbrook-North Monaghan in opposing the adjournment request. At that time the following submissions were made by the Ministry:

(i) The need for the bridge repair work and road improvements that were behind the Minister’s application for approval to expropriate was pressing;

(ii) The Minister’s statutory authority to expropriate for highway purposes should not be made subject to planning decisions made by local planning authorities;

(iii) Notice of the Ministry’s plan had been on title at the time Towerhill had acquired the lands in question;

(iv) The owner had ample time to prepare for the Hearing;

(v) No firm date for completion of the environmental assessment work and other studies referred to by Mr. Macos had been provided.

18I learned from submissions by counsel today that the most recent expected date for completion of the County Study would be some time in January, 2008.

19After hearing argument from both sides, the Inquiry Officer, Ms. Burton denied the request to adjourn and ordered that the Hearing should proceed as scheduled on February 19th. At the time she gave her ruling, she also gave reasons and these were done orally. Subsequently she provided further explanations and they appear in pages 2 and 3 of her Report.

20In her Report, she covered the Motion to Adjourn in considerable detail and gave a number of reasons for her finding that there would be no adjournment. She concluded that part of her report by saying, “I saw no overwhelming need to delay the hearing because of unquantified future growth in the area. The municipalities had not opposed the proposal during the TESR process, nor were their present letters specific or definitive in opposition to the project.”

21In order to set aside the findings of the Inquiry Officer, one must establish that her findings were demonstrably unfair. The Inquiry Officer was mandated to determine whether the proposed taking was “fair, sound and reasonably necessary in the achievement of the expropriation authority’s objectives” and she did just that. I see no reviewable error.

22Towerhill argues that the Minister would not be prejudiced by delay due to the judicial review application because the owner was at all times prepared to make the lands necessary for a contemporary ramp available to the Ministry. But the respondent submits that the Ministry would indeed be prejudiced by delay and that there are two serious flaws in the owner’s proposal, as follows:

(i) The alternative of building a temporary ramp was one of the alternatives considered during the environmental assessment process but it was not the approved alternative. As such, MTO would have to re-open the environmental approval process to determine whether the temporary ramp was now the most appropriate alternative, and

(ii) The temporary ramp alternative results in throwaway costs of nearly a million dollars.

23The Ontario Divisional Court decision in Bezic Construction Ltd. v. The Queen in Right of Ontario, 263 D.L.R. (4th) 328, rendered January 26, 2006, deals with a situation remarkably similar to the present.

24In paragraph 6 of that decision,

“The relief sought here is in the nature of certiorari, as the applicant seeks to quash the Inquiry Officer’s report because of a [page 330] denial of procedural fairness. We are satisfied that we have jurisdiction to hear this application. The duty of the Inquiry Officer is to write a report in which she makes findings of fact and gives her opinion on the fairness, soundness and reasonable necessity of the taking (s.7(5) and (6)). It is true that the ultimate decision to expropriate is made by the approving authority. Nevertheless, the hearing before the Inquiry Officer is the only chance for the property owner to challenge the plan to expropriate and the report must be considered by the approving authority before the final decision is made to expropriate (s.8(1)). Therefore, the report is an important step in the expropriation procedure, which affects the interests of the property owner.”

25The essence of the foregoing is that the denial of natural justice for lack of procedural fairness is the only basis for which the Inquiry Officer’s report can be challenged. In the present facts, I do not find that the claims of the applicant fit those criteria, or come anywhere close to doing so.

26Accordingly, the application is dismissed.

DAY J.

Date of Reasons for Judgment: August 30, 2007

Date of Release: September 18, 2007

COURT FILE NO.: 143/07

DATE: 20070830

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT