DIVISIONAL COURT FILE NO.: 53/16
LTB FILE NO.: LC120027 DATE: 2018-01-03
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
J. R. Henderson, Pierce, Fregeau JJ.
BETWEEN:
1353837 ONTARIO INC.
Appellant
(Claimant by OMB Proceeding)
– and –
THE CORPORATION OF THE CITY OF STRATFORD
Respondent
(Respondent by OMB Proceeding)
J. S. Doherty, D. L. Watt, and R. D. Aburto, for the Appellant
C. J. Williams, T. J. Hill and A. Skinner, for the Respondent
HEARD at London: November 30, 2017
Madam Justice H.M. Pierce
REASONS ON APPEAL
1This appeal arises from an expropriation of land owned by 1353837 Ontario Inc. (“the corporation”). The land was acquired by the corporation in 2001. The Corporation of the City of Stratford (“Stratford”) is the expropriating authority. Stratford sought the land for the purpose of creating a satellite campus for the University of Waterloo.
2The corporation issued a notice of arbitration and statement of claim for compensation against Stratford pursuant to s. 26(b) of the Expropriations Act, R.S.O. 1990, c. E. 26. The principles for compensation are found, in part, at s. 14(4) (b) of the Act.
3The corporation’s amended claim for compensation exceeded one hundred pages and advanced claims going back to 1996, five years before the corporation acquired title to the land. These claims are traced through two predecessors in title. Some tort claims that are included in the claim for compensation are being tried concurrently in the Superior Court of Justice while other claims relate to the conduct of officials who are not associated with Stratford or whose claims have already been disposed of in other litigation. It is Stratford’s position that the corporation’s claim for compensation is out of control.
4Accordingly, Stratford moved before the Ontario Municipal Board (“the Board”) for partial summary judgment against the corporation. The Board granted partial summary judgment in accordance with Rules 20 and 21 of the Rules of Civil Procedure. In its ruling, dated October 14, 2016, the Board dismissed the following claims:
(1) all allegations and claims for losses arising from alleged damages or interference with the expropriated lands that pre-date October 16, 2006;
(2) all allegations and claims that Stratford breached and/or interfered with the 1996 agreements. In addition, all allegations and claims relating to “the Project” are amended to include only the expropriated lands;
(3) all allegations and claims asserted that Stratford and other officials wrongfully interfered with the corporation’s use and development of its lands.
5In addition, the Board determined that there was a genuine issue requiring a trial as to the precise date of the commencement of the scheme of expropriation, which it determined was “no earlier” than October 16, 2006.
6The corporation appeals the Board’s decision to the Divisional Court, pursuant to s. 31(1) of the Expropriations Act. Section 31(2) of the Act gives the Divisional Court jurisdiction to refer any matter back to the Board or to make any decision or order that the Board has power to make.
7Specifically, the corporation identified the following issues for determination on the appeal:
(1) Did the Board improperly interpret s. 14(4) (b) of the Expropriations Act by finding that there must be a clear public announcement of Stratford’s intent to acquire the expropriated land?
(2) Did the Board err by exercising the powers under Rule 20.04 (2.1) of the Rules of Civil Procedure, which are reserved for Superior Court Judges?
(3) Did the Board err by granting summary judgment when there are genuine issues requiring a trial with respect to:
(i) the time frame of the scheme pursuant to s. 14(4) (b) of the Expropriations Act;
(ii) Stratford’s actions with respect to the 1996 agreements and the restrictive covenants therein; and
(iii) The corporation’s claims that Stratford and other officials wrongfully interfered with the corporation’s use and development of its lands?
Standard of Review
The Corporation’s Position
8The corporation argues that while deference may be shown by the reviewing court to the Board’s decisions made within its area of expertise, including market valuation, no such deference is warranted here, as the Board was not calculating market value at a hearing. Therefore, it submits, the standard of correctness should apply.
9The corporation also argues that the application of the Rules of Civil Procedure, and in particular the summary judgment rules, are a question of general law outside the expertise of the Board, and therefore reviewable on a standard of correctness.
10It also contends that the Board did not apply correct legal principles when interpreting s. 14(4) (b) of the Expropriations Act when it determined that there must be a clear public announcement of the expropriation scheme under the Act.
11Furthermore, the corporation submits that the Board’s decision to dismiss parts of its claim summarily on an incomplete record should also be reviewed on a standard of correctness.
12The corporation submits that while the reviewing court has jurisdiction to make its own findings and draw its own inferences, it should only do so when the court below has committed a palpable and overriding error with respect to findings of fact, or drawing of inferences that are “clearly wrong, unreasonable, or unsupported by the evidence.” It also submits that the Board decision contains palpable and overriding errors, including uncontradicted affidavit evidence such that no deference to the fact-finder is required.
Stratford’s Position
13Stratford argues that the standard of review for decisions under the Expropriations Act is reasonableness, recognizing the Board’s expertise in this area. It submits that the reasonableness standard applies to questions of fact, questions of mixed law and fact, and questions of law that flow from the interpretation or application by the Board of its home statute.
14In addition, Stratford contends that the Board has expertise in controlling its own procedure to which a standard of deference applies. As to summary judgment motions, it submits that, based on the principles enunciated in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 SCR 87, whether there is a genuine issue requiring a trial is a question of mixed fact and law. Unless there is an error of law, Stratford argues that the standard of review is reasonableness.
Reasons on Standard of Review
15The Supreme Court of Canada considered the standard of review in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, 402 D.L.R. (4th) 236. At para. 22 the court discussed the presumption of reasonableness in reviewing decisions of administrative bodies. It observed:
Unless the jurisprudence has already settled the applicable standard of review…, the reviewing court should begin by considering whether the issue involves the interpretation by an administrative body of its own statute or statutes closely connected to its function. If so, the standard of review is presumed to be reasonableness.
16Two cases from the Ontario Court of Appeal have established that the standard of review for the Ontario Municipal Board is reasonableness. In Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation), 2011 ONCA 419, 106 O.R. (3d) 81, para. 61, the Court of Appeal determined that the Ontario Municipal Board has expertise in interpretation of the Expropriations Act and in legal questions closely related to the Act.
17In Windsor (City) v. Paciorka Leaseholds Ltd., 2012 ONCA 431, 111 O.R. (3d) 431, the Court of Appeal also applied a reasonableness standard of review to an Ontario Municipal Board determination dealing with expropriation. The court determined that the factual underpinnings of an expropriation scheme calls upon the Board’s expertise in applying the legal principles in the Expropriations Act (para. 18).
18In the appeal before us, the case law supports that the standard of review is reasonableness because we are reviewing a decision of the Board that applies the legal principles from the Expropriations Act, a statute that is closely connected to the Board’s function, to the facts underpinning an expropriation scheme. In other words, the Board is dealing with mixed fact and law, for which the standard of review is reasonableness.
Principles for Reasonableness
19In our view, the standard of review that applies to all issues on this appeal is reasonableness.
20The case, Ryan v. Law Society of New Brunswick, 2003 SCC 20, 1 S.C.R. 247, the Supreme Court of Canada considered the principles that apply to judicial review on a standard of reasonableness. The court held that the process of review on reasonableness is fundamentally different than the process for review based on correctness.
21First, the court held that with a correctness review, the court may undertake its own reasoning process to reach a decision it considers to be correct. However, when reviewing a tribunal’s decision to determine whether the decision was unreasonable, the court must give effect to the legislative intention that a specialized body is primarily responsible for deciding questions based on its own process and for its own reasons (para. 50).
22Reviewing courts were reminded that “review of administrative action on a standard of reasonableness involves deferential self-discipline” (para. 46). The onus is on the party seeking review to show that the decision is unreasonable (para. 48).
23The Ryan court held that an unreasonable decision is one that “is not supported by any reasons that can stand up to a somewhat probing examination” (para. 48). It explained at para. 55:
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.
24Significantly, at para 56, the Ryan court held that not every element of the reasoning must independently pass the test for reasonableness. In Construction Labour Relations Assn. (Alberta) v. Driver Iron, 2012 SCC 65, [2012] 3 S.C.R. 405, para. 3, the court reiterated that administrative tribunals do not have to consider and comment in their reasons on every issue the parties raise. Rather, the court concluded:
For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable.
25After Ryan was decided, the Supreme Court of Canada collapsed the three existing standards of review (correctness, patent unreasonableness, and reasonableness) into two standards of review: correctness and reasonableness. See: Dunsmuir v. New Brunswick, 2008 SCC 9. In preserving the standard and principles relating to reasonableness, the court confirmed the deferential approach.
The Board’s Entitlement to Grant Summary Judgment
26The corporation argues that the Board erred in granting partial summary judgment to narrow the issues, instead of reserving them for trial. In particular, the corporation contends that the Board was wrong to conclude that there was no genuine issue requiring a trial in relation to:
(a) the time frame for the scheme of expropriation;
(b) Stratford’s actions with respect to the 1996 agreements and the restrictive covenants related to those agreements; and
(c) the corporation’s claims against Stratford and other officials it says interfered with its use of the lands.
27Is deference owed to the Board’s application of the summary judgment rule from the Rules of Civil Procedure to this case? We conclude that it is.
28Rule 20.01 of the Rules of Civil Procedure permits a party to move, with supporting affidavits or other evidence, for an order granting or dismissing all or part of the claim. Rule 20.04 (2) (a) gives the court jurisdiction to grant summary judgment if it is satisfied there is no genuine issue requiring a trial with respect to a claim or a defence.
29Section 34 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28, provides that:
The Board for all purposes of this Act has all the powers of a court of record and shall have an official seal which shall be judicially noticed.
30Section 35 continues:
The Board, as to all matters within its jurisdiction under this Act, has authority to hear and determine all questions of law or of fact.
31Further, section 91 of the Act gives the Board power to make general rules regulating its practice and jurisdiction. Thus, it appears that the Legislature intended to grant the Board full plenary powers to hear and decide matters within its jurisdiction.
32As well, case law supports that a tribunal may have expertise in determining its own procedures for decision-making. See: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, para. 27, 174 D.L.R. (4th) 193.
33The Divisional Court applied a deferential standard of review to the Board’s authority to determine its own procedures in Menkes Lakeshore Ltd. v. Toronto (City), 2007 65611 (ON SCDC), [2007] O.J. No. 2834, paras. 30 – 31, 37 MPLR (4th) 42.
34The Board has established its own Rules of Practice and Procedure made under s. 91 of the Ontario Municipal Board Act, and pursuant to s. 25.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Rule 4 provides that any matters not dealt with by the Board Rules may be dealt with by the Rules of Civil Procedure in order to adjudicate issues before it effectively and completely. This includes the summary judgment rule.
35Further, under s. 132 of the Board Rules, the Rules of Civil Procedure apply to Part II dealing with expropriations unless the Board orders otherwise. In this case, the Board directed that Stratford could bring a summary judgment motion.
36Accordingly, we find that the Board was entitled to use the summary judgment rule from the Rules of Civil Procedure.
The Board’s Entitlement to Grant Partial Summary Judgment
37The next question for consideration is this: was the Board entitled to grant partial summary judgment in this case, including by weighing evidence? We are advised that there is no case law on this point.
38The powers of the court on summary judgment motions are set out in Rule 20.04 (2.1) of the Rules of Civil Procedure as follows:
In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers for such powers to be exercised only at a trial:
weighing the evidence;
evaluating the credibility of a deponent;
drawing any reasonable inference from the evidence.
39The corporation submits that the Board was not entitled to weigh evidence, evaluate credibility or draw inferences because such powers are reserved for judges. It relies on Pammett v. Ashcroft, 2014 ONSC 2447, paras 34 – 35 in which a Master in the Superior Court of Justice declined to weigh evidence under the summary judgment rule because he lacked jurisdiction to do so. We do not agree that the Board lacked jurisdiction to weigh evidence here.
40First principles with respect to the reformed summary judgment rule are discussed in Hyrniak. The purpose of summary judgment is to promote access to justice through procedures that are proportionate, timely and affordable (para. 5).
41In Butera v. Chown, Cairns LLP, 2017 ONCA 783, the Court of Appeal considered the use of partial summary judgment. The court reflected that when partial summary judgment is invoked, there is a risk of duplicative or inconsistent findings at trial. It also cautioned that the procedure could cause the resolution of the main action to be delayed, resulting in increased costs. The court warned that judges will be required to spend time hearing partial summary judgment motions and writing reasons when the motion does not dispose of the action. Finally, the court suggested that the record available for a partial summary judgment motion would not be as expansive as that available at trial, thus increasing the risk of inconsistent findings. See paras. 28 – 33.
42The Butera court described a motion for partial summary judgment as a rare procedure, to be limited to issues that can be “readily bifurcated from those in the main action” and dealt with in an expeditious and cost-effective manner (para. 34).
43Within its jurisdiction, the Board has the statutory authority to finally determine issues, including cases under the Expropriations Act. The Board functions as a trier of fact. Thus, it is not in the position of a Master, whose role in the court is more circumscribed compared to that of a judge. The members of the Ontario Municipal Board occupy a role than is analogous to that of a judge.
44The members of the Board must weigh evidence, draw inferences and assess credibility at full hearings. These are the same individuals who hear summary judgment motions. Having created a tribunal with expertise in the issues that come before it, there is no principled reason to artificially restrict its adjudicative powers in appropriate cases by limiting its capacity to weigh evidence. To do so would be to frustrate purposes of the summary judgment rule enunciated in Hryniak: to promote access to justice through procedures that are proportionate, timely and affordable. It would also unnecessarily limit the tools available to the Board for deciding cases. As well, it may force parties to engage in unnecessarily protracted and expensive litigation.
45Partial summary judgment allows the tribunal to control its own process. It is a tool for case managing litigation in appropriate cases. In this case, which is focused on documentary evidence, partial summary judgment allows the Board to narrow the issues. It is a reasonable approach and avoids the mischief described in Butera.
46Here, narrowing the issues will materially shorten the scope of discovery, documentary production, examinations, and the hearing itself, leading to reduced costs, less delay, and more efficiency. The member hearing the summary judgment motion seized herself of the case, which will reduce the risk of duplicative or inconsistent findings at trial.
47Accordingly, we conclude that the Board was entitled to grant partial summary judgment in this case, including the weighing of evidence as set out in the Rule.
Was the Board’s Decision to Grant Partial Summary Judgment Reasonable?
48Having found that the Board’s use of the summary judgment rule was reasonable, was its conclusion reasonable? The corporation argues that the Board erred for these reasons:
the Board erred in law when it applied the wrong test for s. 14 (4) (b) of the Expropriations Act;
the record was not complete;
the decision contains palpable and overriding errors, including failing to consider uncontradicted affidavit evidence;
there is a risk of inconsistent findings.
The Commencement of the Scheme
49The corporation argues that the Board erred in law when it applied the wrong test for determining when the scheme of expropriation began. The Board determined that the commencement date was “not before” October 16, 2006, the date on which Stratford entered into a memorandum of understanding with the University of Waterloo to develop a satellite campus. The Board left the exact date to be determined at trial. The effect of this ruling was to significantly narrow the issues.
50The corporation argues that this ruling was in error. It submits that the determination of an expropriation scheme is factually complex and the decision was made on an incomplete record, before Stratford had produced its affidavit of documents. It also argued that there is a significant risk that there will be inconsistent findings at trial.
51We do not agree that the record was incomplete. On appeal, voluminous exhibits and other documents were produced that were available to the Board. As well, Stratford’s chief administrative officer was cross-examined for 8 hours prior to the motion. The onus is on parties to a summary judgment motion to “put their best foot forward.” It is not an answer to say that better evidence will be available at trial: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at para. 15.
52Further, the motion judge is entitled to assume that the record contains all of the evidence that would be introduced at trial: Carone v. Peel Condominium Corp. No. 766, 2016 ONSC 7821 at para. 14. He or she must be confident that the evidentiary record is sufficient to resolve the dispute: Cook v. Joyce, 2017 ONCA 49 at para. 81.
53Nor do we agree that issues of credibility were involved on the summary judgment motion. The Board was not limited to considering only uncontradicted affidavit evidence; indeed, it was obliged to consider the evidence as a whole.
54The conclusions of the Board were driven by the documentary record before it. Compared to the alternative commencement dates proposed by Stratford, the Board selected the one that was most advantageous to the corporation.
55The corporation suggests that the Board applied the wrong test in finding when the expropriation scheme commenced by requiring a clear public announcement of the scheme. At para. 36 of the Board’s reasons, it held that it was necessary to find a clear announcement of Stratford’s intention to acquire the expropriated lands.
56The Board rejected the corporation’s argument that the scheme commenced upon discussions between the corporation’s principal and an individual councillor, or between the mayor and the corporation’s mortgagee, or during in camera discussions at Council where no resolution flowed from the discussion meet this requirement.
57In this case, the Board reasoned that because a municipality acts through the resolutions of its Council, confidential or in camera Council discussions, including with legal counsel or staff do not trigger the notice of intention to acquire land under the Expropriations Act.
58While we do not agree with the Board’s statement at para. 36 of the reasons that “a clear public announcement” of intention to expropriate land is a prerequisite in all expropriations under the Act, we are satisfied that the Board considered the various ways in which notice of intention to expropriate may be signaled in the case law. Although it might have been better expressed, the Board was not making a statement of law by declaring that there must be a “clear public announcement” of intention to expropriate land as the test for expropriation. In the context of the reasons as a whole, it is evident that the Board recognized that a public announcement was one of several ways recognized in case law as signaling an intention to expropriate.
59At para. 32 of the Board’s reasons, reference is made to various means by which intention may be announced, including a letter to the owner, identification of lands by public study, and formal public steps taken by public authorities to preserve the lands.
60We conclude that in requiring a “clear public announcement,” the Board was relating to the facts of this case as it found them, rather than stating the definitive legal test for the commencement of any expropriation scheme. In our view, on these facts, this conclusion was reasonable.
The 1996 Agreements
61The corporation acquired title to the expropriated land in 2001. It is important to understand that the land described by the corporation as “Disputed Lands” are not part of the parcel of land that was expropriated. In its amended statement of claim for compensation, the corporation refers to the combined expropriated lands and disputed lands as “the Project.”
62The corporation submits that the Board erred in determining there was no genuine issue requiring a trial in relation to the 1996 agreements and restrictive covenants. The corporation described the agreements as follows:
The 1996 Agreements consist of seven interrelated contracts which taken together permitted a block development of the Cooper site. These agreements include such documents as the agreement of purchase and sale for Expropriated Lands with restrictive covenants, an Option to purchase agreement regarding the Disputed Lands, and a Development Agreement.
63The Board, in the prior decision of Chair Tanaka, found that it did not have jurisdiction to determine the ownership of the Disputed Lands. However, this restriction relates only to parts of the 1996 agreements.
64It is the corporation’s position that these agreements and restrictive covenants affected its failure to develop the expropriated lands and influenced Stratford’s dealings with the corporation so that the value of the expropriated lands was negatively affected.
65Stratford argued on the motion that the Board had no jurisdiction to determine the corporation’s rights under the 1996 agreements.
66The Board found that the disputed lands were not before the Board. It also held that even if the corporation’s rights under the 1996 agreements were relevant to the expropriation proceedings, the same issue was pending in the Superior Court of Justice. In our view, the Board’s determination that it would not be an efficient use of time and resources to consider these issues in a parallel proceeding was reasonable. The Board held that, subject to any prior determination made by the Superior Court or an appellate court, the Board would only consider what impact, if any, the 1996 agreements had on the value of the expropriated lands.
67Accordingly, the Board dismissed all claims that Stratford breached and/or interfered with the 1996 agreements. In addition, it amended all allegations and claims relating to “the Project” to include only the expropriated lands.
68We find that this approach was also reasonable on the facts as the Board found them. The Board took control of its own process, narrowed the issues for hearing, focused on the value of the expropriated land, and avoided the risk of inconsistent findings.
The Rule 21 Ruling
69Finally, Stratford moved pursuant to Rule 21.03 (a) for a determination of a question of law as to whether the Board has jurisdiction to evaluate the corporation’s claims against statutory officials for interference in its lands. These are referred to as “interference claims.”
70In our view, in its consideration of Rule 21, the Board was engaged in an exercise of applying the law to the facts as it found them; thus its findings are of mixed fact and law, for which the standard of review is reasonableness.
71Deference is owed to the Board in determining the interpretation of the Expropriations Act as it falls within the Board’s expertise. Was the Board’s decision reasonable when it dismissed the claims that the City and other officials wrongfully interfered with the corporation’s use and development of its lands?
72Rule 21.01 (1) of the Rules of Civil Procedure provides that:
A party may move before a judge,
for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial, or result in a substantial saving of costs;…
and the judge may make an order or grant judgment accordingly.
73One of the grounds for dismissal under the Rule is that the Board has no jurisdiction over the subject matter of the action (Rule 21.01(3) (a)).
74At para. 52 of its reasons, the Board summarized the nature of the claims being advanced by the corporation as follows:
As noted earlier, the Claimant has made numerous allegations and claims regarding actions taken by the Chief Building Official, the Ministry of Labour, the Ministry of Environment and Climate Change, the Perth District Health Unit, and the Stratford Fire department as part of its allegation of a “campaign of interference” by the City. The City submits that it is beyond the Board’s jurisdiction to assess claims for damages that relate to alleged misconduct of municipal and other officials, as such claims amount to a review of the propriety of the actions of these officials.
75With respect to the interference claims, the Board noted that the parties had also been involved in administrative proceedings before other tribunals, such as the Ontario Labour Relations Board, the Health Services Review and Appeal Board and the Superior Court. Litigation in the Superior Court was on-going at the time this appeal was heard. No doubt the Board was concerned about the overlap of these claims as they were re-cast.
76In our view, the Board had no jurisdiction to determine whether officials owed a duty of care to the corporation. Some of these officials are not associated with Stratford in any fashion but answered to other tribunals.
77The corporation acknowledges that its claims for interference lead up to the expropriation date of October 16, 2006. The Board noted the corporation’s position that the interference began in the 1990s on a date to be determined. On the strength of this submission, the corporation argued before the Board that there was a genuine issue requiring a trial.
78The corporation relied on Dell Holdings Ltd. v. Toronto Area Transit Operating Authority, 1997 400 (SCC), [1997] 1 S.C.R. 32, 142 D.L.R. (4th) 641 to argue that the court may award disturbance damages in expropriation proceedings when determining market value of the expropriated land.
79“Disturbance damages” are not defined in the Expropriations Act. However, at para. 28 of Dell Holdings, the Supreme Court of Canada held that compensation for expropriation must be for damages that are “the natural and reasonable consequences of the expropriation” which are not too remote.
80The facts leading to disturbance damages are significantly different in Dell. In Dell, the Transit Authority released a report recommending construction of a GO Transit station at one of two sites, both located on Dell’s land. The Transit Authority continued to study the location and the amount of land needed while the municipality withheld approval for subdivision and development of the land. Some 3 years later, the Transit Authority selected the site and expropriated part of the land. The parties agreed that the delay in development of the unexpropriated land led to a damage claim.
81In accordance with the reasoning in Dell Holdings, the Board held at para. 27 of its reasons that disturbance damages are only available after the announcement of an intended expropriation but before the land is taken. Here, the corporation’s claims for disturbance pre-date the announcement of expropriation.
82The Board distinguished the case of Alliance Pipeline Ltd. v. Smith, 2011 SCC 7 in which a claimant was allowed to claim as damages costs incurred in two arbitrations and one court proceeding related to an expropriated easement as being reasonably incurred by the claimant in pursuing compensation under the National Energy Board Act. The Board explained at para 54 of its reasons:
The Alliance case, however, does not entail a review of discretionary decisions of regulatory officials or bodies. This, in effect, is what the Claimant is asking the Board to do here. The Board simply does not have the jurisdiction to engage in such an exercise of reviewing the actions and discretionary decisions of officials and tribunals in carrying out their statutory functions….
83The Board held that because it found that the scheme of expropriation was to facilitate the University of Waterloo campus, the allegations of interference that pre-date the commencement of the scheme were not relevant to the Board’s ultimate determination of compensation under the Expropriation Act. In our view, this conclusion was both reasonable and correct.
Conclusion
84For the foregoing reasons, the appeal is dismissed. If the parties cannot agree on costs, the respondent may make written submissions to the panel within 15 days of the release of these reasons, and the appellant may respond within ten days. Costs submissions are not to exceed 5 pages. If no submissions are made, costs will be deemed to be settled.
H. M. Pierce, J.
I agree _____________________________
J. R. Henderson, J.
I agree ______________________________
J. S. Fregeau, J.
Date of Release: January 3, 2018
CITATION: 1353837 Ontario Inc. v. City of Stratford (Corporation), 2018 ONSC 71
DIVISIONAL COURT FILE NO.: 53/16
LTB FILE NO.: LC120027 DATE: 2018-01-03
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J.R. Henderson, Pierce, Fregeau JJ.
BETWEEN:
1353837 ONTARIO INC.
Appellant
(Claimant by OMB Proceeding)
– and –
THE CORPORATION OF THE CITY OF
STRATFORD
Respondent
(Respondent by OMB Proceeding)
DECISION ON APPEAL
Pierce J.
Date of Release: January 3, 2018
/lvp