CITATION: D.D.S. Investments Ltd. v. Toronto (City), 2010 ONSC 1393

DIVISIONAL COURT FILE NO.: 351/06

DATE: 20100326

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McCOMBS, DAMBROT AND SACHS JJ.

B E T W E E N :

D.D.S. INVESTMENTS LTD.

Appellant

– and –

CITY OF TORONTO

Respondent

Robert G. Ackerman

for the Appellant

Brendan O’Callaghan

for the Respondent

HEARD AT TORONTO: March 3-4, 2010

DAMBROT J.:

[1] D.D.S. Investment Ltd. (“DDS”) appeals from the determination by the Ontario Municipal Board (“OMB” or “Board”) of the compensation to be paid by the City of Toronto to DDS for the expropriation of certain lands pursuant to a notice of arbitration served by DDS in accordance with s. 26 of the Expropriations Act, R.S.O. 1990, c. E-26.

BACKGROUND

The original land purchase

[2] On April 20, 1998, DDS purchased 1.919 acres of land (the “land”) east of Laird Drive in the former Borough of East York from Canadian National Railways for $325,000, for the purpose of constructing a waste recycling and transfer station. The land was, and remains, essentially vacant. Most of the land was zoned M2 (general industrial), which permitted the intended development. A strip of land along the southern boundary was zoned M1 (light industrial), and could not be used for waste recycling.

[3] In September 1998, DDS filed an application for approval of a waste disposal site with the Ministry of the Environment (“MOE”). In December 1998 Toronto City Council approved a recommendation that the City inform the MOE that the City did not object to the MOE’s approval of DDS’s application, and that the site was correctly zoned for the proposed use. MOE would not issue a Certificate of Approval until Site Plan Approval was obtained.

[4] At the date of purchase, the City had a subsurface storm sewer and a subsurface water main in place on the land pursuant to licence agreements with CN. Neither utility was supported by a written easement agreement, because it was CN policy to enter into licence agreements only. Both of these pipes were located underground, in the middle of the portion of the site zoned M2. DDS was aware of the existence of these two utility pipelines, and took title subject to the existing contractual commitments in the two licence agreements. Upon closing, the licences were assigned to DDS.

[5] The storm sewer licence was of indefinite duration and remained in good standing. However the water main licence was for a period of ten years, and that period had expired, but the licence remained in force until terminated by either party on 30 days’ notice. DDS gave that notice, and the licence terminated on November 1, 2000. The licence provided that the City was obliged to remove the pipeline forthwith after termination, at its own expense.

The prior court proceeding

[6] By letter dated April 28, 1999, the City asked DDS to enter into easement agreements in respect of the two pipelines. DDS refused to do so. Instead, on September 22, 1999, DDS brought an application under s. 194(5) of the Municipal Act 2001, R.S.O. 2001, c. 25 seeking damages and a declaration that the City was required to remove and relocate the two pipelines under its property. The City brought a cross-application asking the Court to impose easements over the land in respect of the two pipelines, or to grant it an opportunity to acquire an interest in the lands to accommodate its interest.

[7] Section 194(4) of the Municipal Act provides that no person may interfere with a part of a municipal utility for which there is no easement unless the municipality consents, or a court authorizes it by order under the section. Section 194(5) provides that the Superior Court of Justice may authorize such interference where the applicant has an interest in the land and the use of the land by that person is substantially affected. Section 194(7) provides that when making such an order, the Court may make such other orders as it considers necessary, including an order that the applicant provide an easement for an alternative location for the utility and for compensation.

[8] In reasons dated March 17, 2000, Cumming J. reached the following conclusions that have relevance to this appeal:

• The pipelines were each a part of a municipal public utility, but neither was subject to a municipal public easement.
• The City had not consented to interference with the pipelines by the terms of its licences.
• The construction of buildings over the pipelines would prevent or lessen access for maintenance and would constitute interference with part of a municipal public utility within the meaning of s. 194(4) of the Municipal Act.
• Although the City had a policy that pipelines not be located under private buildings, it would agree to a building of appropriate specifications over the storm sewer. However, no building could be constructed over the water main because it is under pressure and would create a safety risk.
• Since interference is prohibited even in the absence of the licence agreements, DDS is prohibited from interfering with the water main as well as the storm sewer despite the termination of the licence relating to the water main.
• The use of the land by DDS was substantially affected by the continuing presence of the pipelines, and, as a result, the Court had the power to make an order authorizing interference as it considered necessary pursuant to s. 194(5) of the Municipal Act, including ordering that DDS provide an easement for an alternative location.
• There is a public interest in maintaining the two pipelines. Both are essential to the general welfare of the community at large.
• It would be costly to move either of them.

[9] As a result, Cumming J. made the following order:

1. Pursuant to s. 194(7), DDS was to provide the City with an easement with compensation in respect of the water main in its existing location.
2. The parties had sixty days (or longer upon agreement) to negotiate mutually agreeable specifications in respect of a waste disposal and recycling building to be constructed over the storm sewer.
3. In the event of successful negotiations, DDS was to provide the City with an easement for the storm sewer and compensation.
4. In the event that agreement was not reached, the City had the option to (1) relocate the storm sewer to a location within the land but not under the proposed building at its expense, in which case DDS was ordered to grant the City an easement for the storm sewer and compensation; or (2) acquire the land by purchase or expropriation. In either case, the City was to elect its option within sixty days after the expiry of the time period for negotiation.
5. In the event that the City elected to expropriate the storm sewer, the date of expropriation was to be no later than November 1, 2000.
6. Should the City elect neither option, it was ordered to remove the storm sewer from DDS’s land at the City’s expense.
7. A claim for damages made by DDS was refused, because the licence agreement, known to DDS when it purchased the land, conferred authority for the presence of the two pipelines.

[10] Neither party appealed this decision.

The expropriation

[11] The negotiations contemplated by the order of Cummings J. were unsuccessful. Cumming J. subsequently extended the date of expropriation to no later than November 1, 2001. The City elected to exercise its option to expropriate, and on October 24, 2001, the City expropriated two subsurface easements for the two existing pipelines in their original locations, comprising a total of .1814 acres by registering its Plan of Expropriation.

[12] Following the expropriation, on November 14, 2001, DDS submitted an application for site plan approval to the City. Although the City did not believe the site plan to represent the most efficient use of the site, it was prepared to accept the proposed site plan configuration, subject to certain conditions. DDS required the matter to be referred to the Board for a determination and settlement of details of the site plan pursuant to s. 41(12) of the Planning Act, R.S.O. 1990, c. P-13.

[13] In addition, with respect to the expropriation, DDS served notice of arbitration on the City and the Board pursuant to s. 26 of the Expropriations Act to have the compensation for the expropriation determined by arbitration. Pursuant to s. 29 of this Act, in such a case any compensation is determined by the Board.

[14] The two hearings were consolidated, and heard by Member Stockton on various dates extending from May 2, 2005, to December 7, 2005.

The Board decisions

[15] The Board issued two decisions in respect of the two matters on June 7, 2006. In its decision on the site plan application, Member Stockton concluded that with one small modification, the conditions requested by the City were fair and reasonable. Of significance, the Board found that if DDS chose to locate its weigh scale/office building in its desired location, and as a result the water main would have to be relocated, the relocation would be at the expense of DDS. He reached this decision because an alternate configuration of the buildings that would not require the relocation of the water main was reasonable.

[16] DDS did not appeal this decision.

[17] In his decision on the expropriation arbitration, Member Stockton reached the following conclusions:

• With respect to the claim for the value of the interest in the land taken, he awarded DDS $56,000.
• With respect to the claim for injurious affection, he awarded DDS $30,000.
• With respect to the claim for business losses, he made no award.
• With respect to the claim for increased interest, he made no award.

The appeal

[18] DDS filed an appeal from this decision. After it filed its Notice of Appeal, DDS asked the Board to amend its decision by adding that interest on the amounts payable and costs are to be determined in accordance with the provisions of the Expropriations Act. In a decision issued on December 9, 2006, the Board concluded that once the decision was under appeal, the Board did not have the jurisdiction to amend its decision. Accordingly, he concluded that no amendment would be entertained until the appeal was determined.

[19] On this appeal, DDS advanced three grounds of appeal that were raised in its Notice of Appeal, as follows:

• The Board erred in making no award for business losses.
• The Board erred in failing to make an order for the payment of interest.
• The Board erred in failing to make an order for costs.

[20] At the outset of the appeal, DDS brought an application for leave to amend its Notice of Appeal by adding the following prayers for relief:

• An Order varying and increasing the amount of $30,000.00 awarded for damages for injurious affection to the sum of $143,700.00.
• An Order setting aside the finding that the damages for business and delay losses to which the applicant is entitled is nil; directing that the Board consider the evidence which was presented at the Hearing regarding business and delay losses; directing that the Board hear evidence of the further business and delay losses of the Appellant suffered since June 7, 2006; and directing that the Board rule thereon after the appellant’s revised Site Plan has been approved.

[21] I observe in relation to the first proposed amendment that the award of damages for injurious affection was not challenged in the original Notice of Appeal. The refusal to award damages for business and delay losses, however, was challenged in the original Notice of Appeal. The proposed amendment simply brings under consideration business losses alleged to have been suffered after the hearing before the Board.

[22] DDS also brought an application to adduce fresh evidence at the outset of the appeal. Some of the proposed fresh evidence was tendered in support of the new prayer for relief concerning injurious affection. The remainder of the proposed fresh evidence was tendered in support of the claim for business losses.

[23] We refused leave to add the new prayer for relief in respect of the award for injurious affection, and, in addition, we refused leave to adduce fresh evidence in relation to that prayer for relief. We reserved our decision respecting the applications to amend the prayer for relief and to adduce fresh evidence in relation to business losses until the end of the appeal, because we were of the view that we could not decide the matter without first considering the original ground of appeal concerning the Board’s decision to refuse to make an award for business losses. As will be seen, we have dismissed those applications as well. I will explain our reasons with respect to both issues after considering the grounds of appeal in the Notice of Appeal.

THE ISSUES

[24] I will proceed to deal with the following issues:

1. Did the Board err in making no award for business losses?
2. Did the Board err in failing to make an order for the payment of interest or for costs?
3. Should the Court permit the appellant to file an amended Notice of Appeal and adduce fresh evidence?

ANALYSIS

Did The Board Err In Making No Award For Business Losses?

[25] DDS’s claim for business losses before the Board was that from May 1999 to a date in the future, it has suffered and will continue to suffer business losses caused by the expropriation of the easements. Although the plan of expropriation was not filed until May 21, 2001, DDS argued that it was entitled to claim losses from May 1999, a date one year after it acquired the land and two years before the expropriation. It said that it would have been able to complete the construction of a new building and handle and process waste from that time but for the delay occasioned by the City. That delay consisted of the City’s delay in processing its site plan, and certain steps taken by the City to hold up its application for a Certificate of Approval from the Ministry of Environment that it needed to operate its plant. Specifically, DDS argued that the City asked the MOE to hold DDS’s file in abeyance until all zoning matters with the City had been resolved.

[26] The Board concluded that in order to award an amount for business loss, the Board had to find causation – there had to be a nexus between the taking of the easements and the claim for damages arising from the business loss. In this case, DDS knew from the outset of the existence of the underground utilities and the licence agreements that benefitted the City. It was on notice before it closed the purchase of the lands that the utilities could represent an impediment to the completion of its development plans. A prudent business person would have retained professional planning advice from the outset of his or her development plans. DDS, however, first retained a planner much later in the process.

[27] The Board found no evidence to suggest that the City elongated the planning process. While the site plan was an extended one, the Board concluded that the nature and intended use of the property itself, the difficulties presented by the location of the underground utilities, and the absence of a professional planner to co-ordinate the entire process had as much to do with the delay as the workings of the City’s planning department.

[28] With respect to the Certificate of Approval from the MOE, the Board declined to make a finding that the City was responsible for the MOE’s decision to hold DDS’s file in abeyance until all zoning matters with the City were resolved.

[29] Having regard to these findings, the Board concluded that there was no causal nexus between the expropriation process per se, and any business losses suffered by DDS.

[30] This determination of compensable business losses is essentially a finding of fact, but it does involve a consideration of s. 13(2)(b) of the Expropriations Act, which provides that the compensation payable to an owner of expropriated land includes damages attributable to disturbance. The term “disturbance” is not defined in the Act, but is illustrated in s. 18 and s. 19. Of relevance here, s. 18(1) provides that the expropriating authority shall pay to an owner, in respect of disturbance, such reasonable costs as are the natural and reasonable consequences of the expropriation. Section 19 specifically describes compensation for business losses flowing from the relocation of a business as a result of expropriation.

[31] The meaning of disturbance was addressed by the Supreme Court of Canada in Dell Holdings Limited v. Toronto Area Transit Operating Authority, 1997 400 (SCC), [1997] 1 S.C.R. 32. In that case, Dell, which was in the business of land development, owned a 40 acre parcel of land in Mississauga for which it was seeking the necessary government approval for residential development. The Toronto Area Transit Operating Authority (“TATOA”) released a report recommending the construction of a new GO Transit station on one of two sites, both of which were located on Dell’s land. The Regional Municipality of Peel and the City of Mississauga endorsed both sites. The TATOA then took two years to decide the precise location and acreage required for the station. In the interim, the municipality withheld all requisite approvals for development. As a result, because of the time taken by TATAO to make its decision, the portion of Dell’s land that was not expropriated was delayed for two years.

[32] The Supreme Court concluded that this loss was the natural and reasonable consequence of the expropriation. At para. 30, the Court adopted the following statement of the former Land Compensation Board to represent the appropriate approach to disturbance damages:

[T]he Act is intended to provide full compensation for all aspects of disturbance damages provided the damage is not too remote and is the natural and reasonable consequence of the expropriation.

[33] The Court further concluded that the term expropriation was not restricted to the transfer in title, but included the process of taking the property for the purpose for which it was required, or, in other words, the steps in the acquisition of the land.

The Standard of Review Applicable to the Board’s Determination

[34] The question that falls to be decided next is the standard of review that applies to the Board’s determination to award no damages for business losses. The appellant submits that the standard of review applicable to decisions of the Board is one of correctness. The Respondent, on the other hand, argues that a reasonableness standard applies.

[35] The majority of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 held that if the appropriate degree of deference has already been determined, there is no need to re-evaluate it in every case (see paras. 57 and 62).

[36] Numerous cases, both in the Court of Appeal and the Divisional Court, have determined that on appeals from the Board concerning the provisions of the Planning Act questions of law that engage the specialized expertise of the Board, such as the interpretation of its own statute, attract a standard of reasonableness. Questions of law that are of general application for which the Board has no special expertise are reviewed on a standard of correctness (see London v. Ayerswood Development (2002), 2002 3225 (ON CA), 167 O.A.C. 120 (C.A.); Toronto v. R.&G. Realty Management Inc., [2009] O.J. No. 3358 (Div. Ct.); Toronto v. Romlek Enterprises, [2009] O.J. No. 2232 (Div. Ct.); Ottawa v. TDL Group Corp., [2009] O.J. No. 1048 (Div. Ct.)).

[37] This appeal, however, concerns a decision of the Board under the Expropriations Act. Both the Planning Act and the Expropriations Act contain statutory rights of appeal to this Court. In the case of the Planning Act, the right can be exercised only with leave and only on a question of law. Under s. 31(1) of the Expropriations Act, an appeal may be made on a question of law or fact or both. Further, no leave is required. Does this broader right of appeal support an argument that the Board’s decisions under the Expropriations Act should be reviewed on a standard of correctness when it is dealing with issues of fact and/or issues of law that engage its specialized expertise?

[38] This court has already answered this question in Antrim Truck Centre Ltd. v. Ontario, 2010 ONSC 304, [2010] O.J. No. 156 (Div. Ct.). In Antrim, the Divisional Court heard an appeal from the Board on a decision to award a party damages for injurious affection under the Expropriations Act. The court dealt with the standard of review and concluded that when it came to questions within the expertise of the Board, the applicable standard was reasonableness.

[39] I agree. The Board is a specialized tribunal that makes decisions every day about matters that are outside the normal expertise of the court. As such, deference is owed to its decisions unless those decisions concern matters outside of its area of expertise or those decisions are unreasonable.

[40] Here the appellant is arguing that the Board erred in finding that there was no causal connection between the actions of the respondent and the appellant’s business losses on account of delay. As already outlined, this is a question of mixed fact and law that involves applying the law concerning the damages to be awarded in the expropriation context, an area squarely with the Board’s specialized expertise. As such, the standard of reasonableness applies to this appeal. According to the Supreme Court of Canada in Dunsmuir (supra) at para 47,

Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

Was the Determination of the Board not to Award Disturbance Damages Reasonable?

[41] In my opinion it was. The Board clearly understood the law. As I have noted, disturbance costs must be the natural and reasonable consequences of the expropriation. Member Stockton approached the matter correctly. He said that he had to “find causation; in other words there must be a nexus between the taking of the easements, and the claim for damages arising from a business loss.” He noted that regardless of the expropriation, the claimant knew, or should have known that the existence of the utilities was an impediment to the completion of their plans. He then examined the delays pressed on him by DDS, and made relevant findings of fact about the delay. Most particularly, he found that the City did not intentionally elongate or impede the planning process. He concluded that difficulties inherent in the proposal and the absence of a professional planner had as much to do with the length of the process as did any delay in the City’s planning department. In the end, he concluded that there was no causal effect between the expropriation process per se, and any business losses suffered by DDS.

[42] This aspect of the Board’s decision is supported by the evidence, is transparent and intelligible, and easily falls within the range of reasonable outcomes. Indeed, if the standard of review was correctness, I would not hesitate to conclude that the decision was correct. I would not give effect to this ground of appeal.

Did the Board Err in Failing to Make an Order for the Payment of Interest or for Costs?

[43] Section 33 of the Expropriations Act provides that the owner of expropriated lands is entitled to interest on the portion of the market value of the owner’s interest in the land and on the portion of any allowance for injurious affection to which the owner is entitled at the rate of 6 per cent per year calculated from the date that the owner ceases to make productive use of the lands, subject to increase or decrease resulting from delay.

[44] Section 32 of the Act provides that the owner of expropriated lands is also entitled to legal and other costs incurred for the purpose of determining the compensation payable if the amount of the owner’s entitlement awarded by the Board is 85 per cent or more of the amount offered by the statutory authority.

[45] I have already noted that in his decision on the expropriation arbitration, Member Stockton made no order with respect to interest or costs. Following the release of his decision, DDS asked the Board to amend its decision by adding that interest on the amounts payable and costs are to be determined in accordance with the provisions of the Expropriation Act. In a decision issued on December 9, 2006, the Board concluded that once the decision was under appeal, the Board did not have the jurisdiction to amend its decision. Accordingly, he concluded that no amendment would be entertained until the appeal was determined.

[46] There is no question that DDS is entitled to have the issue of interest and costs determined by the Board. The City agrees that this is so, but has submissions to make to the Board in relation to the interest and costs awards that should be made.

[47] Whatever might be said about the jurisdiction of the Board to amend a decision under appeal, the Board was not precluded from making orders for interest and costs that it was statutorily obliged to make despite the filing of a notice of appeal. That said, it is apparent that, now that the appeal is concluded, the Board will be prepared to entertain the requests in question. Since the Board never refused to order interest or costs, but only delayed the hearing of the request, there is no need to make any order that it do so now. I am confident that it will consider the matter promptly.

Should the Court Permit the Appellant to File an Amended Notice of Appeal and Adduce Fresh Evidence?

1. Should the appellant be permitted to file an amended notice of appeal and adduce fresh evidence in relation its claim for injurious affection?

[48] Section 13 of the Expropriations Act provides that where the land of an owner is expropriated, the compensation payable to the owner by the expropriating authority shall be based upon (a) the market value of the land; (b) the damages attributable to disturbance; (c) damages for injurious affection; and (d) any special difficulties in relocation.

[49] Section 1 of the Act provides that where a statutory authority acquires part of the land of an owner, injurious affection means:

(1) 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

(2) such personal and business damages, resulting from the construction or use, or both, of the works as the statutory authority would be liable for if the construction or use were not under the authority of a statute.

[50] In this case, as I have mentioned, the Board awarded $30,000.00 to DDS as damages for injurious affection. Member Stockton concluded that any allowance for injurious affection in relation to the reduction in market value of the remaining land was included in the determination of the loss-of-value of the lands as a whole. As a result, he made no additional award of damages for injurious affection in the valuation process. He did, however, accept the view that the City should be responsible for the cost of relocating the water main as a consequence of its expropriation, and fixed that cost at $30,000.00.

[51] As I have also mentioned, at the outset of the appeal, DDS brought an application for leave to amend its Notice of Appeal to add the following prayer for relief:

• An order varying and increasing the amount of $30,000.00 awarded for damages for injurious affection to the sum of $143,700.00.

[52] If this application was an effort to ask for a review of the correctness of the decision of the Board in respect of injurious affection for the first time almost four years after the decision, I would dismiss it out of hand. But that is not the nature of what DDS requests. Instead, it wants to advance an argument that subsequent events justify altering the original decision. In support of this request, DDS brought an application to adduce fresh evidence in support of this argument.

[53] When this matter was heard by the Board, DDS intended to locate a recycling building over the storm sewer easement, and relocate the water main. The proposed fresh evidence demonstrates that DDS was unable to obtain construction financing to build a building over the storm sewer easement. As a result, DDS has obtained an amendment to the approved Site Plan and a minor variance to the zoning of part of the lands in order to permit it to locate the recycling building away from the storm sewer easement. With this change accomplished, as well as changes that obviate the need to move the water main, financing is now apparently available. DDS says that all of this has resulted in an additional $143,700.00 in damages for injurious affection.

[54] In considering these two applications, I bear in mind the following. First, pursuant to rule 61.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, once an appeal is perfected, no grounds other than those stated in the notice of appeal may be relied on, and no relief other than what is sought in the notice of appeal may be sought, except with the leave of the court hearing the appeal.

[55] Second, when fresh evidence is tendered on an appeal, it should only be admitted if it could not have been adduced at trial despite the exercise of due diligence; it bears upon a potentially decisive issue at trial; it is reasonably capable of belief; and if believed, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result (see R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759; R. v. Stollar, 1988 65 (SCC), [1988] 1 S.C.R. 480; Monteiro v. Toronto Dominion Bank, [2005] O.J. No. 4749 (Div. Ct.); Dew Point Insulation Systems Inc. v. JV Mechanical Ltd., [2009] O.J. No. 5446 (Div. Ct.)).

[56] In this case, I am inclined to the view that the evidence could not be expected to have affected the result. In view of the fact that the works that created the problems for DDS were in place when it bought the land, and that regardless of the expropriation, s. 194(4) of the Municipal Act precluded interference with those works without the consent of the City or the authorization of the Board, I doubt that the costs to DDS as a result of its inability to obtain financing could amount to damages for injurious affection. But I content myself with refusing both to admit the proposed evidence and to amend the Notice of Appeal on the basis that the appellant fails the requirement that the evidence could not have been adduced at trial despite the exercise of due diligence. The difficulty that DDS was likely to have in obtaining construction financing to build a building over the storm sewer easement was in evidence before the Board. Indeed, it was even in evidence before Cumming J. more than ten years ago.

[57] Cumming J. stated, at paragraph 23 of his decision of March 17, 2000, “As well, Mr. Bonfa states that his bank will not finance the construction of the building over the storm sewer.”

[58] More importantly, evidence to that effect was before Member Stockton in the consolidated hearing in 2005. He noted, in his decision on the site plan application, that:

A great deal of time was spent on these agreements [the City’s proposed easement agreements and encroachment agreement] at the hearing, particularly by the Applicant who attempted to demonstrate that the provisions of the agreements were an unreasonable restriction on the Applicant’s lands, and would provide a restriction to obtaining financing.

[59] Despite the evidence about financing, the Board approved the City’s proposed agreements, with one alteration. The appellant may not like the Board’s treatment of this evidence, but the fact remains that the proposed fresh evidence is the same evidence that was before the Board in 2005, was factored into the Board’s award for injurious affection, and cannot meet the requirement that it could not have been adduced at trial despite the exercise of due diligence. Ironically, if the proposed fresh evidence discloses anything new that is relevant to the award for injurious affection, it is the fact that despite being awarded $30,000.00 to cover the cost of relocating the water main as a consequence of its expropriation, DDS has altered its plans and will no longer need to relocate the water main.

[60] Accordingly, I would not permit the appellant to file an Amended Notice of Appeal and to file fresh evidence in support of the amendment.

2. Should the appellant be permitted to file an amended notice of appeal and adduce fresh evidence in relation to its claim for business losses?

[61] I have already stated that the Board did not err in concluding that there was no causal nexus between the expropriation process per se, and any business losses suffered by DDS, and accordingly damages for business losses should not be awarded. The proposed amended prayer for relief in respect of this issue asks that the Board be directed to reconsider the issue, taking into account evidence of further business and delay losses suffered by the Appellant since June 7, 2006. This request reflects a fundamental error. Litigation is intended to be final, subject to error. Fresh evidence may be admitted where it bears upon a potentially decisive issue at trial and could reasonably be expected to have affected the result. But when it comes to the assessment of future damages or losses, boards, like Courts, are expected to do their best to make an appropriate assessment at the hearing. The parties cannot return to the Board and ask that the mater decided by it be reopened every time that subsequent events might arguably alter the quantum of damages originally assessed.

[62] But I would refuse to admit this evidence for other reasons. The proposed fresh evidence in relation to this issue, in essence, is that there was further delay in the ability of DDS to begin constructing its plant, and so further business losses, because it discovered, subsequent to the Board’s decision, that the water main could not be moved away from the proposed site of the office building for engineering reasons. As a result, DDS had to undertake the lengthy process of changing the location of the office building and securing the necessary approvals.

[63] The fundamental impediment to the admission of this evidence is that even if it was believed, it could not reasonably be expected to affect the result of this appeal. Since we have already affirmed the Board’s finding that there was no causal nexus between the expropriation process and the earlier business losses suffered by DDS, then there can be no basis to conclude that there was a nexus between the expropriation process and these additional business losses.

[64] What is more, the decision of the Board was not premised on an assumption that the water main could be moved, but only on the understanding that the appellant was choosing to move the utility. In its decision on the site plan application, the Board stated:

The Board is satisfied on the evidence, that an alternate configuration of buildings on the site is reasonable, and would permit construction without the necessity of relocating the water main. Therefore, the cost of relocation should fall to the Applicant as provided in the City’s draft agreement.

[65] The fact is that it was the appellant’s engineer who proposed, at the hearing, that the water main could be relocated. The City was indifferent as to whether the water main was relocated or the building moved.

[66] The appellant’s application to file an amended notice of appeal and adduce fresh evidence in relation to its claim for business losses is refused.

DISPOSITION

[67] The appeal is dismissed. The respondent may file brief written submissions as to costs within fifteen days of the release of this decision. The appellant will have fifteen days from the date of receipt of the respondent’s submissions to file brief written submissions in reply.

DAMBROT J.

I agree.

McCOMBS J.

I agree.

SACHS J.

RELEASED:

CITATION: D.D.S. Investments Ltd. v. Toronto (City), 2010 ONSC 1393

DIVISIONAL COURT FILE NO.: 351/06

DATE: 20100326

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McCOMBS, DAMBROT AND SACHS JJ.

B E T W E E N :

D.D.S. INVESTMENTS LTD.

Appellant

– and –

CITY OF TORONTO

Respondent

REASONS FOR JUDGMENT

DAMBROT J.

RELEASED: March 26 2010