CITATION: Erbsville Road Development Inc. v. Waterloo Region District School Board, 2015 ONSC 5216

DIVISIONAL COURT FILE NO.: DC14-550

DATE: 2015/11/13

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Harvison Young, Ellies, Howard JJ.

B E T W E E N:

ERBSVILLE ROAD DEVELOPMENT INC.

Claimant (Respondent in Appeal)

Simon J. Adler, for the Claimant (Respondent on Appeal)

• and -

WATERLOO REGION DISTRICT SCHOOL BOARD

Respondent (Appellant in Appeal)

Michael A. van Bodegom and Peter A. Hertz, for the Respondent (Appellant)

HEARD: June 4, 2015

REASONS FOR DECISION

ELLIES J.

OVERVIEW

[1] The Waterloo Region District School Board (the “School Board”) appeals from the decision of Ontario Municipal Board Member H. S. Goldkind made following an arbitration held under the Expropriations Act, R.S.O. 1990, c. E.26 (the “Act”). In his decision, Member Goldkind awarded interest on land expropriated by the School Board from Erbsville Road Development Inc. (“Erbsville”), commencing on the date draft approval was given to a plan of subdivision that included the land in question, even though the School Board did not finally decide to expropriate the land until later.

[2] The School Board challenges the board member’s decision to award interest for the period of time before the land was actually expropriated.

[3] In my view, the appeal should be dismissed. As I will explain, the board member applied the correct test to determine the date from which interest should accrue and the findings of fact he made in the course of applying that test were reasonable, as was the outcome of his analysis.

BACKGROUND

[4] The subject land is located in an area of the City of Waterloo known as Clair Hills, in a subdivision known as Clair Meadows. Land use in the Clair Hills area was governed by the Clair Hills District Implementation Plan (the “District Plan”). The District Plan identified two possible elementary school sites. One of those sites fell within a plan of subdivision prepared on behalf of Erbsville, namely Plan 30T-97017. Although a single block was initially identified as a possible school site in Plan 30T-97017, it was eventually reduced in size and split into two blocks. One of those blocks was later released by the School Board and developed by Erbsville into single family dwellings. The other, Block 38, is the subject of this appeal.

[5] The Regional Municipality of Waterloo gave draft approval to Plan 30T-97017 on December 24, 1999. Three of the conditions of the draft approval are relevant to this appeal:

(a) Condition 1 provided that Block 38 was identified as “School/Residential”;

(b) Condition 32 provided that Block 38 was “set aside as a school site for the [School Board]”; and,

(c) Condition 33 provided that “if Block 38 is developed for school purposes, the owner agrees to provide a