Power Cycle Inc. v. Windsor (City), 2021 CanLII 49328

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 02, 2021

CASE NO(S).: LC150015

The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.

PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant: Power Cycle Inc.

Respondent: City of Windsor

Subject: Land Compensation

Property Address/Description: 3140 Walker Road

Municipality: City of Windsor

LPAT Case No.: LC150015

LPAT File No.: LC150015

LPAT Case Name: Power Cycle Inc. v. Windsor (City)

Heard: March 23, 2021 by video hearing

APPEARANCES:

Parties

Counsel/Representative*

Power Cycle Inc. (“Claimant”)

Ignatius Power

City of Windsor (“City”)

Patrick Brode*

Aadil Nathani (Student-at-law)

DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL

INTRODUCTION, BACKGROUND AND HEARING

1The Claimant served and filed a Notice of Arbitration and Claim seeking compensation from the City under the Expropriations Act (“Act”). The Claimant’s request for compensation related to its ownership of property located at 3140 Walker Road in Windsor (the “Subject Property”) and sought compensation arising from an expropriation, business losses and losses from injurious affection in the amount of $4 million, as well as prejudgment interest in accordance with the Courts of Justice Act, and costs.

2The Claim asserts that the City had expropriated lands along Walker Road and completed improvements to the roadway “over a number of years”. On the record, the Claimant’s filing of the Statement of Claim followed the City’s improvements to the Walker Road Corridor in 2012. The Claim alleges that the Claimant (as opposed to the Claimant’s property) was the dominant tenement entitled to the benefit of an easement over some portion of the City’s street which had been used by the Claimant’s customers for parking. The Claim alleges that the City “expropriated the lands over which the Claimant was entitled to the Easement”.

3The business operations of the Claimant involved the sale of motorcycle accessories and clothing, and storage and servicing of motorcycle equipment (“Business”). The Statement of Claim provides no further particulars as to the damages for business losses and injurious affection and indicates only that full particulars of such damages have been, and will be, provided to the City.

4The City’s pleadings deny that there is any such easement and asserts that none of the Claimant’s lands were expropriated as alleged. The claims for any compensation have been denied by the City.

5The Claimant’s Claim was initially filed by retained counsel on August 19, 2015. Sometime in 2018, the Claimant’s retainer of counsel was terminated and Mr. Ignatius Power, the Claimant’s principal and representative, sought and apparently retained alternate counsel. That second lawyer shortly thereafter also ceased representation of the Claimant.

6A Case Management Conference (“CMC”) was convened by the Tribunal in July of 2020. Despite the fact that some two years had elapsed, Mr. Power requested further time to secure new counsel. Mr. Power attended two subsequent CMCs scheduled on August 17, 2020 and October 8, 2020. Mr. Power indicated each time that he was still seeking new counsel and asked for further extensions. The Tribunal directed the issuance of a Procedural Order on January 13, 2021 and the hearing was then set for March 23, 2021.

7Yet a further adjournment was requested by Mr. Power in February due to the continued non-retainer of a lawyer, which adjournment was objected to by the City. Due to the lack of consent to an adjournment, the Tribunal advised that a motion to adjourn the hearing would be required. No such motion was brought by the Claimant, and Mr. Power was advised that he was to be prepared and ready to proceed at the scheduled hearing, with witnesses and documentation filed. The Claimant advised that he intended to call no witnesses and no documentation was filed by the Claimant before or at the hearing.

8Mr. Power attended and provided the only testimony and evidence for the Claimant at the hearing.

9The City called one witness, Mr. Fahd Mikhael, a professional engineer and Manager with the City’s project engineering and management and filed a Brief of Documents marked as Exhibit 1 to the hearing. References to “Tabs” in this Decision are all references to the tabulated documents in Exhibit 1.

THE CLAIMANT’S EVIDENCE

10The Claimant’s evidence in the proceeding was very limited and, for the most part, was comprised of a summary reading of the bare pleadings contained in the original Statement of Claim and a number of general assertions with limited facts as to: the Subject Property, the Claimant’s Business, the evolution of the layout and design of the street, sidewalks and intersection fronting the Subject Property, and the loss of “frontage” in from of the building. Mr. Power provided no documentation or evidence to support his description of construction or frontage or the changes that he alleged had occurred, and nothing to support the allegation of an easement over the City’s road allowance, in favour of the Subject Property.

11The Claimant confirmed that although he had previously had two dealerships with Yamaha and Suzuki, they were taken from him, and as a result of the significant impact on the sale of new cycles, his profits were reduced. Mr. Power also generally testified that there were “reductions in his sales” once construction occurred on Walker Road. Absolutely no documentary or corroborating evidence was provided by the Claimant to support these general statements as to the decline in income or profit of the Business, nor any evidence to suggest that these losses were somehow connected to work done by the City on Walker Road.

12On cross-examination, Mr. Power indicated that some arrangement had existed with the City regarding the ability of his customers to park on a portion of the sidewalk/roadway allowance adjacent to the travelled portion of the roadway as it then was, but could provide no particulars as to how this had been done through prior legal counsel.

13Mr. Power admitted that he was not aware of an easement on Walker Road and had not seen the registry documents in Exhibit 1, which indicated that there was no registered easement in favour of the Claimant’s Subject Property.

14Mr. Power indicated that he had never received a Notice of Expropriation from the City, had no knowledge of when any land would have been expropriated, and said that he had only been told that the City owned all of the land up to the face of the building on the Subject Property.

15Mr. Power acknowledged that the construction on Walker Road in front of his building had commenced in 2012 but indicated that this construction was only “a part of it” and that there had been other construction between 2002 and 2012. In response to the questions on cross-examination, Mr. Power confirmed that between 2002 and 2012, when this “other construction” had occurred, he had never raised any issues or provided notice to the City regarding concerns about such “other work”.

16With respect to the Business operations, Mr. Power confirmed on cross-examination that he had lost the Yamaha dealership in 2009, and the Suzuki dealership agreement had ended, and was not renewed, in 2010, both due to a lack of gross sales. This occurred prior to the commencement of the 2012 Walker Road Corridor construction and improvements.

17As to the Claimant’s allegation regarding interference with his Business operations, Mr. Power admitted, in response to questions on cross-examination, that in July and August 2012, there had been discussions with the City regarding three driveway curb cuts and approaches to the multiple entrances to the Claimant’s building. The Tribunal was referred to Tabs 5 to 8, which were email communications between the City staff and Mr. Power’s lawyer at that time. These email communications were confirmed by Mr. Power. At a point when Mr. Power had parked motorcycles in front of the building, impeding vehicular traffic, and shut down work in that area, the City met with the Claimant and a compromise to widen the driveway approaches (Tab 7) was reached.

18This represents the sum total of the evidence presented in the Claimant’s case in support of the claims for compensation.

ANALYSIS AND FINDINGS ON THE EVIDENCE

19The Claim, as advanced by the Claimant in its Statement of Claim, appears to be threefold:

1. First, that the City expropriated lands over which the Claimant has an easement and compensation is presumably claimed for the value of that taking.

2. Second, damages for “business losses” are claimed. Framed, as it is, with a scarcity of detail or precision in the pleading, it is unclear as to what losses and what amounts are claimed. The Claimant has asserted very generally that the expropriation resulted in business losses as a result of the improvements on Walker Road.

3. Third, the Claim also pleads other damages for injurious affection, without particulars of any such injurious affection.

The Claimant also, as indicated, claims costs and interest relative to the damages claimed.

20The Tribunal will address each of the three heads of damages.

Expropriation of the Easement Lands

21Very simply, the evidence before the Tribunal is unequivocal that there was no such easement benefiting the Subject Property on the City’s roadway lands at the time of the commencement of the City’s work on Walker Road. No easement ever existed. Mr. Power has admitted that he is not aware of the specifics of the easement referred to in the Statement of Claim. The much more direct as evidence on the subject are the certified title documents (Tabs 14, 15, 16) produced.

22Both the PIN parcel for the Subject Property and copies of the original transfers of title to Ignatius Power in the 1970s confirm that no such easement has ever been registered in favour of the Subject Property. Despite the allegation in the pleading, there was never any easement interest in any portion of lands that were the subject of expropriation. Any expropriation plan would have been required to delineate existing easements and the City, as the expropriating authority would have been required to account for the easement and whether it would be extinguished under the expropriation.

23None of this happened, and understandably no notice of expropriation was ever served upon the Claimant, as he confirmed. Mr. Mikhael confirmed in his evidence that no lands owned by the Claimant, nor any easement, was expropriated by the City.

24Since none of the Claimant’s lands were expropriated, and since no easement interest ever existed, the Tribunal accordingly finds that the Claim purporting to assert a loss of an interest in land through expropriation by the City is without any merit.

Business Losses

25The Claimant has produced virtually no evidence of any kind to support a claim for business losses beyond a mere allegation that there was such a loss. Despite vague references by Mr. Power to some type of improvements on Walker Road prior to the 2012 Corridor improvements, the construction which might give rise to a claim for damages occurred in 2012, and not before. By Mr. Power’s own admission, the last of the only two motorcycle dealership contracts terminated at least two years prior to the 2012 construction work. The only inference that can be drawn from what little information has been provided by Mr. Power, suggests that the lack of gross sales in the business prior to 2009 and 2010 was the cause of the dealership loss.

26There is otherwise no business valuation evidence, financial records, profit and loss statements, income tax returns, nor any evidence supportive of a causal relationship between any downturn in sales or loss of business, if such occurred, and the construction work undertaken by the City on Walker Road in 2012. There is no proof of out of pocket expenses, increased operational expenses, lost sales, nor any evidence that might permit the Tribunal to assess the impact of the construction or calculate any manner of claim for such business losses. Further, there was no evidence provided as to land value or business value of the Business or the Subject Property before 2012, or afterwards, that would support any claim of loss. Although Mr. Power made a general statement that his “business was affected” and “land value was affected”, he frankly stated he had no actual number as far as a value was concerned.

27Mr. Mikhael provided a straight-forward overview of the planning and execution of the improvements undertaken on Walker Road, a main north-south arterial road in the City, leading to the interchange ramps to the expressway at South Service Road, some metres north of the Subject Property. In addition to the road improvements, there was major storm sewer work, water sewer, water main, and hydro utilities work in the Corridor.

28Mr. Mikhael testified that Mr. Power had attended the public meeting in 2011, specifically concerned about access from the street and the City had considered his requests. The work on the phase of the project near or in front of the Subject Property started in July of 2012. Road grading was done on August 15, 2012 and concrete paving approximately one week later, some of which was done in the evening to minimize daytime disruption and expedite the work. Walker Road remained open at all time but was reduced to one lane in each direction to accommodate the works.

29Mr. Mikhael explained the incident admitted by Mr. Power where motorcycles had been placed on the City roadway where the contract work was to commence and the police were involved. Mr. Mikhael personally attended to speak to Mr. Power and the concerns were directly related to the width and sufficiency of the curb drop and driveway access from the street to the elevated sidewalk fronting the building (all of which is City owned). Mr. Mikhael’s recollection is that the compromise, reduced to writing in the exchanged emails, was to Mr. Power’s satisfaction.

30Mr. Mikhael clarified that within the design (Tab 4) except for the obviously reconstructed street, curb and sidewalks, and some minor changes in surfacing and elevations (including the curb cuts and entrances), there was no real change to Walker Road in the immediate area fronting the Subject Property. The reconfiguration of the northbound lanes to accommodate a right-turn lane at South Service Road occurred further north fronting Lots 415 and 416, and not in front of the Subject Property (Tab 13). Parking was not otherwise affected as there was no parking on Walker Road permitted prior to the project. Accommodation was actually made by the City to permit parking for the business during off-hours. The photographs were reviewed by Mr. Mikhael which show the drop curbs and the eventual compromise that allowed for additional wider access to permit motorcycle entry from the street for repairs.

31Despite Mr. Power’s belief that a piece of equipment had been parked near the front of the Subject Property, Mr. Mikhael’s evidence was that he did not recall a large piece of equipment being parked there for that length of time.

32As there has clearly been no expropriation of any of the Claimant’s lands by the City, any claim for business loss must be made under s. 21 of the Act for injurious affection. Any damages claimed must: (a) result from the lawful exercise of the statutory authority of the City in undertaking the construction; (b) be such that the damages would have been actionable under the common law but for the fact that the City exercised its statutory authority; and (c) result from the construction and not the use of the works.

33The Tribunal finds that the Claimant has failed entirely to provide any evidence of any kind to support any claim for damages relating to business loss relating to the construction that was undertaken by the City in an orderly fashion. There have been no damages arising from, and causally related to, the construction work undertaken by the City that could be actionable at common law and give rise to a right of compensation. There is no corroborating evidence to support the vague reference to the presence of a piece of heavy equipment in proximity to the Subject Property.

34The evidence is that Mr. Power’s obstruction of the area in front of the Business with parked motorcycles got the attention of the City and resulted in a compromise with extra widened access from the street that may have resulted in some advantage derived from the construction work thus benefiting the Subject Property. Mr. Power acknowledges this compromise that had been reached. The Tribunal otherwise accepts Mr. Mikhael’s evidence as to the efficiencies and organization of the work which kept vehicular traffic open, allowed continued access to the Subject Property and resulted in no disruption to parking.

35The Tribunal is unable to find that the construction work of the City in 2012 unreasonably and substantially interfered with the private use and enjoyment of the Subject Property.

36The Claimant must, under the second requirement of the Act for injurious affection, have a cause of action caused by the construction that is actionable under the law of nuisance. That, in turn, requires that the Claimant establish that there has been both a substantial and unreasonable interference. The Supreme Court of Canada, in Antrim Truck Centre v. Ontario (Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594 (“Antrim”), identified the threshold of substantial interference and enunciated the balancing approach to be used when considering whether the actions of the expropriation authority amount to interference that is unreasonable.

37The Court in Antrim confirmed that in order to screen out “weak claims”, the Claimant must first meet the threshold of substantial interference, which requires a form of interference that is non-trivial, amounting to more than a slight annoyance or trifling interference. Thereafter the Claimant must also satisfy the adjudicator that the non-trivial interference was also unreasonable.

38In assessing unreasonableness, the question is whether, in all of the circumstances, the individual claimant has shouldered a greater share of the burden of the construction such that it would be unreasonable to expect an individual to bear that interference without compensation. As the Court explained, “the distinction is thus between, on one hand, interferences that constitute the “give and take” expected of everyone and, on the other, interferences that impose a disproportionate burden on individuals.” In considering the circumstances, reasonableness should favour the public authority where the harm to property interests “…is such that the harm cannot reasonably be viewed as more than the claimant’s fair share of the costs associated with providing a public benefit.”

39The Tribunal accordingly finds that the Claimant has failed to produce sufficient evidence, or any evidence, to demonstrate that the period and nature of the construction that took place in front of the Claimant’s Subject Property resulted in any real interference to the Claimant’s Business, let alone substantial interference. Although the Claimant fails to meet that threshold of substantial interference, the Tribunal nevertheless also finds that there was nothing that was unreasonable or disproportionate as to any inconvenience or impact upon the Claimant and the Business. Given the compromise that was reached regarding the Claimant’s only expressed opposition to the form of the access at the curb cuts, and the absence of any evidence of any real harm or losses, the Tribunal considers that the reasonableness test would favour the City.

40The Tribunal accordingly also finds that the Claim for damages for business loss, as they might constitute injurious affection, is without any merit.

Other Damages for Injurious Affection

41Despite the allegation of such other damages for Injurious Affection in the Statement of Claim, with the undertaking to provide particulars of such damages, none has been provided and no other damages for injurious affection have been demonstrated. Upon the same analysis undertaken above, and with the absence of any evidence adduced by the Claimant, the Tribunal finds that there is no merit to the Claimant’s “catch-all” claim for other damages for injurious affection under s. 21 of the Act.

Summary

42With the paucity of evidence provided by the Claimant in this proceeding, and upon the evidence provided by the City succinctly addressing basic underlying matters that might have given rise to a legitimate claim for damages, the Tribunal accordingly concludes that there is no merit to any aspect of the Claimant’s claims for damages and the Claim must be dismissed in it totality, as the City requests. The Tribunal finds that there was no expropriation of any interest of the Claimant, no established loss of land value, no proven business losses and no other losses or damages falling within the rubric of injurious affection.

ORDER

43The Tribunal Orders that the Claim is dismissed.

“David L. Lanthier”

DAVID L. LANTHIER

VICE-CHAIR

Ontario Land Tribunal

Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal.