2266088 Ontario Limited o/a Bull & Barrel Urban Saloon v. Windsor (City), 2021 CanLII 56445

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: June 22, 2021

CASE NO(S).: LC190009

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

Claimant: 2266088 Ontario Limited o/a Bull & Barrel Urban Saloon

Respondent: City of Windsor

Subject: Land Compensation

Property Address/Description: 670 Ouellette Avenue

Municipality: City of Windsor

LPAT Case No.: LC190009

LPAT File No.: LC190009

LPAT Case Name: 2266088 Ontario Limited o/a Bull & Barrel Urban Saloon v. Windsor (City)

Heard: March 29 to April 1, and April 6, 2021 by video hearing

APPEARANCES:

Parties	Counsel
2266088 Ontario Limited o/a Bull & Barrel Urban Saloon	C. Bondy, I. Vacaru
City of Windsor	P. Brode, A. Nathani (Student-at-law)

DECISION DELIVERED BY S. JACOBS AND ORDER OF THE TRIBUNAL

INTRODUCTION

1The Bull & Barrel Urban Saloon (“Bull & Barrel”) is a country and western themed restaurant and bar located in Windsor’s downtown core. It hosts country music nights, weekly event nights, and is home to the city’s only mechanical bull. The indoor seating area has a capacity of 584, and its patio—the largest in Windsor—can seat an additional 272 people.

2The Bull & Barrel is located at 670 Ouellette Avenue, on the main artery through downtown Windsor, in a space leased from 2096829 Ontario Inc. (the “Landlord”). The Landlord operates a school, the New Canadian Centre for Excellence (the “NCCE”), next to the Bull & Barrel, at 660 Ouellette.

3The City of Windsor (the “City”) undertook significant streetscape improvements to Ouellette Avenue over the course of a six-phase project (the “Project”). The sixth and final phase occurred in and around the Bull & Barrel and the business claims damages through its numbered company, 2266088 Ontario Limited (the “Claimant”) in the amount of $273,845.50 as injurious affection pursuant to s. 22 of the Expropriations Act, R.S.O. 1990, c. E. 26, as amended (the “Act”).¹ In summary, the Bull & Barrel claims that its customers lost access to the establishment at various times during the Project and that this resulted in its business losses.

4Over the course of this five-day hearing, the Tribunal heard from the following witnesses:

• Christian Komsa, the Owner and Director of the Claimant;
• Jim Tracey, who was retained by the Claimant and qualified by the Tribunal to provide opinion evidence in the area of chartered business valuation;
• Adam Coates, a Senior Urban Designer with the City who was the planning liaison for the Project;
• Joe DeThomasis, the Project Manager for J & J Lepera Infrastructures Inc. (“Lepera”), the City’s contractor for the Project;
• Roberto Vani, the Manger of Inspections and Deputy Chief Building Official for the City;
• Jane He, an engineer with the City and Project Manager for the Project; and
• Glenn Tautrims, retained by the City and qualified by the Tribunal to provide opinion evidence in business valuation and accounting matters.

The Claim

5In its Statement of Claim, the Claimant sought $566,610 in general and special damages. Mr. Bondy, in his opening statement, indicated that the Claimant was seeking damages for business loss in the approximate amount of $260,000. When questioned about the amended figure by the Tribunal, Mr. Bondy explained that the Claimant was no longer seeking losses for its reconstruction of its patio. These losses were not specifically pleaded in the Statement of Claim and so the Tribunal understands that only the total amount of damages claimed is being amended. At the close of the hearing, Mr. Bondy submitted that the precise amount claimed is $273,845.50.

6The claimed losses arise from a period starting January 2018 through November 2018.

Locational Context for the Claimant’s Business and the City’s Project

7As the main artery in downtown Windsor, Ouellette Avenue spans from Riverside Drive and the Detroit River to the North and continues south through the City. Home to many restaurants, bars, shops, and businesses, it is a street that typically sees a high volume of traffic from both vehicles and pedestrians. This downtown area is served by Transit Windsor, with a significant stop, or transit hub, at the intersection of Wyandotte Street and Ouellette, just across from the Bull & Barrel.

8The Bull & Barrel is located at the northeast corner of Ouellette and Tuscarora Street, south of Wyandotte Street. Travelling from Wyandotte and south on the east side of the street, one would find a Shoppers Drug Mart on the corner, then a church, then the NCCE, and finally the Bull & Barrel before arriving at Tuscarora Street. While there is a small restaurant on the west side of Ouellette, the Bull & Barrel is the only restaurant and bar in this block, though there are many restaurant and bar establishments in the downtown area as noted above.

9Customers typically access the Bull & Barrel through its main double-door entrances on Ouellette. There is also a side entrance on Tuscarora; this side street is also used for deliveries to the establishment. Prior to the City’s Project, there was no on-street parking in the 600 block of Ouellette. The Claimant leases a parking lot on Tuscarora for the use of its customers who drive to the establishment. These customers would pay $5.00 to park in this lot on busy nights, though the Claimant did not charge for parking for the duration of the Project.

The City’s Project, the Landlord’s Projects, and the Claimant’s Patio Improvement

10For context, it is important to understand that during the claim period, there were various construction projects underway in and around the Claimant’s business. The coordination of these various works was discussed throughout the hearing.

11There was of course the City’s Project, that is, the Phase 6 Ouellette Avenue Streetscape Project, which gave rise to this Claim. This Project followed the first five phases of downtown streetscape improvements on Ouellette, Pellisier Street and their side streets, work that was approved in 2005 and completed by September 2011. The sixth and final phase that is the subject of this Claim was budgeted for $5.6 million and included road reconstruction and new streetscape improvements to be built during 2017 and 2018. More details on the Project are provided in the chronology that follows this section.

12During the City’s Project, the Landlord had plans to complete some work on the building, which ultimately involved the City’s right-of-way. While the City was undertaking its sidewalk excavation in front of the Landlord’s building, including the Bull & Barrel, it uncovered areas of the building that were in disrepair. One such area then became subject to an Order to Comply from the City’s building department. The Landlord retained its own contractor to complete this unplanned repair work, as well as its planned work to install an elevator shaft at its Ouellette entrance to the NCCE.

13The Claimant had also hired its own contractor to construct and install a new patio canopy. While the canopy construction was completed offsite, footings were required to be installed in the City’s right-of-way.

14There is a detailed chronology of events pertaining to these various works, established in part through the parties’ Agreed Statement of Fact and elaborated upon throughout the hearing. Before considering the matters in issue, the Tribunal finds it necessary to set out the detailed chronology as context for this Claim.

Chronology of Project Events

15Though the Claimant’s loss period begins in January 2018, the Tribunal heard extensive evidence about events that took place prior to that time. These events are important for understanding how the City’s Project unfolded. The Tribunal will therefore summarize these events first, followed by the events that occurred starting when the loss period began in January 2018.

Chronology Prior to the Claimed Loss Period

16In 2005, the City approved downtown streetscaping improvements for Ouellette Avenue, Pelissier Street, and Maiden Lane West. The first five phases were completed by September of 2011. The sixth and final phase was approved by City Council in 2014 and was followed by consultation with key stakeholders, including Transit Windsor, various City departments, and the Downtown Windsor Business Improvement Association in 2015 (the “DWBIA”).

17The DWBIA conducted consultation meetings with its members in December 2015, which provided feedback that, given that it had been a decade since the time of the original 2005 concept, there was an opportunity for enhancement of the concept. Suggestions included: providing on-street parking on Ouellette for customer convenience and to promote downtown business; promotion of patio space to take advantage of the wider sidewalk area by including additional streetscape features and greening; and the addition of pedestrian safety measures to address the Transit Windsor hub located at the southwest corner of Ouellette and Wyandotte.

18Mr. Komsa testified that he first learned of the Project sometime in 2015 when he was contacted by the DWBIA. There is email correspondence on the record between Mr. Komsa and Debi Croucher of the DWBIA on November 10, 2015. In an email response to Mr. Komsa, who had expressed concerns about the Project, Ms. Croucher indicated that it was “anticipated that the project could take 3-4 months for completion.” It was apparent from Mr. Komsa’s testimony throughout the hearing that he expected the Project to be completed within the three or four months indicated by Ms. Croucher.

19Based on its consultation with key stakeholders, including the DWBIA, City staff, in a report to Council dated February 1, 2017 recommended an enhanced concept design that included on-street parking, a raised median island, and a northbound curbside transit bus bay. The enhanced design concept also included updating the streetscape details to the new standard—including new accent colours, paving patterns, street furniture, open planters, and updating lighting standards—and introducing a second tree line in the pedestrian zone as the containment edge in lieu of a physical building edge. The staff report indicated that construction would be completed in two stages in 2017-2018 with a total estimated budget of $5,600,000. Stage One would include all the work at the Ouellette-Wyandotte intersection and watermain replacement on Ouellette from Wyandotte to Elliot Street. Stage Two would include all the streetscape work and the road reconstruction including drainage from south of Wyandotte to south of Elliot.

20City Council approved the Project in accordance with the staff recommendation on February 21, 2017.

21Mr. Komsa emailed Ms. He, the City’s Project Manager on Tuesday, May 2, 2017 to inquire as to whether construction he observed in the 600 block of Ouellette had anything to do with the Project. Ms. He responded that same day to indicate that the event was not the Project itself but was for locating utilities and elevations for design purposes, and that the work would be done quickly. Mr. Komsa then responded:

Thanks for the reply. Can you be a little more specific than quickly? A day? A few days? Till next week? Any chance of a heads up in the future if this happens again? It is no big deal today as the weather is crappy but we plan promotions and events such as Cinco De Mayo on Friday on the patio. It would not go well with the construction like today directly in front of the building. We were not expecting anything what so ever till later in the year…

Ms. He responded 21 minutes later:

Normally this type of investigation would just go for half day or one day. The approved traffic detour plan for this work is only for today from 7:00am to 5:00pm, subject to weather condition. I will keep a note and provide you with heads up if any type of detour happens at this section of Ouellette. Most likely, union gas would have to do some work before we start, but it will be in isolated areas. I will be in touch with you if this happens.

22There was a gas disruption on a Saturday afternoon in late July 2017. Photographs from the day show construction pylons and workers on Ouellette. Mr. Komsa testified that this was when he realized that construction was starting on Ouellette. He described the restaurant patio as being full just before the dinner hour and that work was being done down the street. He assumed that the workers hit a gas line. As a result, all of the restaurant’s kitchen equipment was not functioning. Mr. Komsa sent an email to Ms. He on July 31, 2017 to inquire as to whether construction had started and he described the weekend incident, noting that the workers hit a gas line, which shut down the kitchen at the restaurant.

23Ms. He responded on August 3, 2017, indicating that construction had not yet started, but that Union Gas had implemented the utility relocation. She referred Mr. Komsa to a representative from Union Gas to answer any questions regarding the gas line problems during the weekend. She also indicated that the major construction for the Project required Council approval on August 8, 2017, and that there would be a public information meeting before starting the construction.

24The record then shows correspondence between Mr. Komsa and a Union Gas representative, Will Ceccacci, who did not testify at the hearing; therefore the Tribunal cannot confirm the information provided in Mr. Ceccacci’s email, notably that it was a planned interruption that lasted approximately 20-25 minutes and that a letter had been distributed for notification purposes. Mr. Komsa’s response confirms that neither he nor his management team received any notification, and he asked Mr. Ceccacci to direct any future notifications directly to his attention. He also noted that the total shutdown time was 30-40 minutes by the time the equipment heated back up, and that this is not a brief interruption for a restaurant. During examination-in-chief, Mr. Komsa testified that he disagreed that it was a planned shutdown and indicated that, had it been discussed with him, he would have advised Ms. He or the DWBIA that shutting down for an hour on a Saturday does not work for the restaurant.

25As Ms. He advised Mr. Komsa, the Project went back to Council on August 8, 2017, after completion of the tendering process. Staff recommended the City accept the low bidder, Lepera with a tender price of $6,275,009. The staff report, authored by Ms. He, explains that there are multiple reasons for this low bid being much higher than the originally approved budget of $5,600,000. Council accepted staff’s recommendation and approved the award of tender to Lepera.

26The City held a Public Information Centre on August 17, 2017, a little over one week following the Council meeting. The notices for the Public Information Centre indicate that its purpose was “to introduce the project team and to inform the public of the timing, staging and nature of the work including the logistics of maintaining access to businesses and residences.” These notices indicate that the public would be given an opportunity to ask questions of the project team, and for those who could not attend, the notices encouraged them to contact Ms. He or a representative from Dillon Consulting Limited (the City’s retained consultant) for more information.

27Mr. Komsa received a letter from the City on August 21, 2017, which appears to have been sent to all property owners in the Project area. The letter indicates that construction will begin the week of August 28, 2017, subject to weather conditions, and that traffic detour signage will be installed prior to construction. It also indicates that construction is anticipated to be completed by the fall of 2018. The letter then describes the tentative staging of construction as follows:

In order to minimize the impact on local traffic and businesses, construction will be staged to minimize the inconvenience. The tentative staging of the construction is summarized below:

Fall 2017 Reconstruction of the Wyandotte Street and Ouellette Avenue intersection and installation of watermain and services on Ouellette from Wyandotte Street to Elliot Street.

Spring/Summer 2018 Road construction and streetscaping improvements on Ouellette from Wyandotte Street to Elliot Street.

28Mr. Komsa was surprised to learn that the Project would continue until the fall of 2018. He had assumed, based on Ms. Croucher’s 2015 email, that the Project would be completed in three or four months.

29The notice further indicates that “[d]uring construction, signs and detours will be posted indicating that the roads are closed, but local traffic will be accommodated as much as possible. All businesses will remain open during construction.” Photographs throughout the record and spanning the construction period confirm that “Road Closed” signs indicated that businesses remained open.

30The final paragraph of the notice was of concern to Mr. Komsa:

We understand that this project will cause inconvenience and potential construction hazards to the adjacent property, school and business owners. All, particularly school-aged children, should exercise special precaution while approaching & crossing the construction site. Your patience and cooperation will be highly appreciated.

He found this paragraph to be alarming and described it as ‘frightening’. He testified that he became concerned about whether he could keep staff on and maintain business levels.

31According to Mr. Komsa, his next experience with the Project came a little over a month later, on September 26, 2017, with a road closure on Ouellette and what he describes as a construction zone. He received a voicemail from Ms. He advising that all four lanes would be closed on Ouellette and he emailed Ms. He to ask that she contact him directly regarding any such information, rather than contacting the DWBIA. Ms. He responded the following day to indicate that she would keep him “in the communication loop.”

32On the morning of October 17, 2017, Mr. Komsa notified Ms. He that there were trucks blocking the right lane on Ouellette in front of the restaurant so that traffic could not get through. Ms. He responded eight minutes later to indicate that she had not heard of this and that she would follow up with the on-site inspector. She provided a further response within twenty minutes, advising that she had spoken with the on-site inspector and that there was no change to the plan to maintain one lane open for north-south traffic on Ouellette from Tuscarora to Elliot:

…we will keep the north-south one lane traffic whenever we could. If we need to close, I will let you know. Anyway, this is what I told them. If there is unexpected moment, please let me know. We will deal with it from there.

She also referenced watermain work that required the installation of a fence. Mr. Komsa responded, providing photographs of the lane blocked by dumped trucks, and noted that it did not seem that the lane was open. Ms. He responded that it was a temporary situation and that she had asked the on-site supervisor to advise the truck drivers of the problem.

33The next afternoon, October 18, 2017, Mr. Komsa wrote to Ms. He, attaching photographs of construction work on Tuscarora:

I think you just told me that there was no change to the plans of leaving one lane open from Ouellette to turn onto Tuscarora to get to our parking lot.

Please see pictures below.

TUSCARORA is closed.

Please advise.

Ms. He responded the following morning:

We have added a flagging person there to guide the traffic. Hope this helps.

34Photographs taken by Mr. Komsa show construction vehicles and materials on Tuscarora on October 26, 2017. In his testimony, Mr. DeThomasis, the on-site project manager for Lepera, confirmed that watermain work was done on the east side of Ouellette during the fall of 2017 and that the tie-in for the watermain occurred on Tuscarora. Ms. He confirmed this in her testimony.

35The next day, Friday, October 27, 2017, Mr. Komsa wrote to Ms. He:

Jane,

Please confirm that the one lane on Ouellette for thru traffic to our parking lot will be open for the weekend. I was told that it may be shut down for a small amount of time yesterday morning (Oct 26th) and is still closed as of now.

It is an absolute disaster outside of my business right now. Piles of gravel are directly in front of the building causing a sand storm every time the wind picks up. We were told “minimal interruption” in 2017 when we were asked about the 2 year construction concept (water lines in 2017 and street scape in 2018). This is NOT minimal interruption.

Ms. He responded on the Monday morning, October 30, 2017:

Good morning Christian,

We are doing watermain installation and preparing to do the water services. Currently they are doing water main testing. Last week and this week should be the most disturbing period for the business (if the water main testing passes). I will talk to the Contractor again and try to minimize the disturbance.

Mr. Komsa responded that afternoon to ask Ms. He whether she was aware that the through lane on Ouellette “will apparently be closed for a week”. The following morning Ms. He responded:

We will have to construct catch basin leads and water service line this week. Hopefully it won’t take that long We tell you the worst scenario and hope the best, the earliest completion time might be tomorrow.

36The next correspondence on file is nearly one month later, on November 27, 2017, when Mr. Komsa wrote to Ms. He to alert her of a safety issue regarding a planter box in front of the Bull & Barrel. She acknowledged the email that same morning and indicated “we will fix it ASAP”.

37According to Mr. Komsa, when the Stage One construction for the Project was completed in December 2017, the area was left in a state of disarray, with broken curbs and construction materials left on site.

38Ms. He testified that the Stage One work was actually completed on November 24, 2017. She did not recall seeing broken concrete or work in progress near the Bull & Barrel at that time. While she did not specifically recall the condition of the site, she indicated that if there was any deficiency, the City would have notified the contractor.

39It is important to note that the Claimant claims no losses for the Stage One construction period. Mr. Komsa noted that the 2017 construction had a minimal impact on business due to the pre-booking of larger events and parties months in advance, though in his opinion, customers were seeing a construction zone and this deterred them from returning to the business during the 2018 Project work.

40In an email dated December 4, 2017, Mr. Komsa wrote to Ms. He to inquire about the City’s 2018 construction plans. Ms. He advised,

We have tried to get a detailed construction schedule but so far it’s not successful yet. Our pre-construction meeting has been scheduled on Feb. 13, 2018. I will know better by that time. So far the general schedule is not satisfied to us at all, it’s too general and it won’t be any help for your business schedule.

Mr. Komsa responded,

Wow….not till Feb 13th? That makes it very hard to plan our 2018.

To which Ms. He replied,

[o]ur construction won’t start until early April, or late March, depending on the weather. We plan to start construction first from west side of the road, if this would help you to schedule your plan. I can ask further if we can get a detailed schedule prior to Feb. 13.

41On December 31, 2017, the Claimant’s Sidewalk Café Permit expired. This permit gave the Claimant permission to use the City right-of-way for its outdoor patio for all of 2017. The Claimant obtained a new Sidewalk Café Permit for 2018 on December 8, 2017. The comments and notes on this permit indicate:

Permission to operate a Sidewalk Café at 670 Ouellette Ave for Bull and Barrel from Jan 1/18 to Summer 2018 (Sidewalk Café will need to be removed when construction for the streetscaping takes place at this section of the road and a new permit is required before any object is placed in the right-of-way following construction)

42The next part of the chronology details events as they occurred starting from the date upon which the Claimant claims its losses.

Chronology During the Claimed Loss Period: January to November 2018

43The claimed period of business losses begins on January 1, 2018. While there was no construction this month, there continued to be communication between Mr. Komsa and Ms. He as the Bull & Barrel attempted to plan for 2018.

44Mr. Komsa set out a number of concerns in an email to Ms. He on January 25, 2018 regarding the upcoming spring construction. These included the Project timetable, street closures, piles of dirt on Ouellette, improved communication about developments in the Project, and an inquiry about obtaining a temporary patio on Tuscarora while the main patio on Ouellette would be closed due to the Project. He suggested meeting in person to discuss these concerns.

45It appears that same day Ms. He asked Dillon Consulting, by e-mail, to review Mr. Komsa’s concerns. She noted, “I am also requesting our people to consider if [we] can allow temporary SW cafe on Tuscarora. However, this will have to be no impact on our construction first.”

46Ms. He then arranged a meeting with Mr. Komsa, which included representatives from the City and Dillon Consulting the week prior to the City’s scheduled pre-construction meeting with Lepera.

The February 2018 Pre-construction Meeting

47The first Project pre-construction meeting took place on February 13, 2018 and included representatives from the City, Lepera, Dillon Consulting, and Enwin (the local water and power utility). Ms. He, Mr. Coates, and Mr. DeThomasis attended this meeting. All testified as to their understanding, as reflected in the meeting minutes, that construction would be complete by September 28, 2018.

48Lepera presented a revised construction schedule during the meeting. Mr. DeThomasis testified that the schedule changed from working in halves on Ouellette (i.e., west and east) to working in quadrants. Paragraph 1.2 of the minutes reflects this change as well as Mr. DeThomasis’ explanation for the change, that the final quadrant would accommodate the patio for the Bull & Barrel:

The revised schedule indicates that the work will be completed in quadrants rather than halves as identified in the Tender drawings. The work will proceed from quadrant to quadrant as follows: northwest, southwest, southeast and finally northeast. This will be beneficial for the Bull and Barrel to accommodate their patio for as long as possible.

Mr. DeThomasis explained that the northwest quadrant consists of the west side of Ouellette from Wyandotte to Tuscarora. Work would begin there then continue to the southwest quadrant, that is the west side of Ouellette from Tuscarora to Elliot, before moving to the southeast quadrant, that is the east side of Ouellette from Elliot to Tuscarora. The Bull & Barrel is located in the northeast quadrant, consisting of the east side of Ouellette between Tuscarora and Wyandotte, and this would be the final quadrant of the Project work.

49The minutes, in paragraph 8.1, refer to the Claimant’s concern about dust:

Noise/Dust/Mud Control

• The Bull and Barrel expressed concern with respect to the dust generated from the work in the Fall of 2017. The Contractor will be required to increase their dust control during their work in 2018.

Mr. DeThomasis confirmed that Lepera was aware of the concerns about dust and that they tried to maintain a clean site. He testified that the crew would control dust by spraying water when they received complaints.

50Ms. He wrote to Mr. Komsa the afternoon of February 13, 2018 to provide an update following the morning pre-construction meeting:

Hi Christian,

Further to our meeting last week, we had the pre-construction meeting with Lepera today. There are some changes on the schedule compared what we discussed in our meeting. Lepera revised the construction schedule and they will start the stage 1 on west side of Ouellette between Wyandotte and Tuscarora in the week of March 5, 2018. You will see some mobilization in the week of Feb. 26, weather permitting. Based on this schedule, the stage 4 will also start a bit earlier than previous schedule. We will keep you in the loop and if any questions please advise.

Mr. Komsa responded, expressing concern with the revised schedule:

Jane,

Is this a necessary change in schedule? The old timing worked much better. We were very excited about it and where [sic] making plans accordingly. Our patio only being down August and September is huge compared to anytime in June to July. Also what kind of construction will there be on Tuscarora the first couple weeks of March as St. Patrick’s day is the biggest day of the year.

He also inquired about fencing to provide some visual screening and to assist with dust.

51Ms. He responded that City staff had the same question to Lepera about the schedule and that “they went through more detailed review of the construction schedule and it is necessary to start early.” She noted that Mr. Komsa would have the majority of July to run the patio with the worst case scenario being “a couple of weeks in late July compared to [the] previous schedule.” Ms. He indicated she would have to get back to Mr. Komsa about St. Patrick’s Day, as it depended on electrical work, and that “we will try our best not to disturb the green beer celebration.”

52As for the fences, she explained over two emails that the type of fencing Mr. Komsa described would not do much to cut down on dust, that the screening could cause a safety concern for view of the crews, and that cost was a factor but it was of “least concern in this case”.

Late February 2018 to May 2018

53By all accounts, work crews were on site to prepare for construction in late February of 2018. Mr. Komsa testified as to the presence of road closure signs and fencing at this time.

54The Bull & Barrel hosted a number of large parties and events in March. Mr. Komsa testified that these were events booked in September of 2017, mainly by large sorority and fraternity groups from the United States who were planning for their spring break.

55Mr. Komsa testified that he and his staff began a log to record construction activity on April 4, 2018 using a paper calendar. The calendar was not in evidence at the hearing. Mr. Komsa prepared a transcript of the calendar, which was tendered as evidence during the hearing. While Mr. Brode, counsel for the City, objected to the document on the basis of hearsay, the Tribunal admitted the document noting that Mr. Brode could cross-examine Mr. Komsa as to its contents and make submissions as to the appropriate weight the Tribunal should accord the document.

56Regardless of the weight or relevance of the document, the Tribunal notes Mr. Komsa’s testimony under cross-examination as to why he chose to start the log on April 4, 2018. He testified it was because that was when the business started to receive complaints about the construction and he realized construction was going to affect sales more than he originally thought.

57The City, Lepera, and Dillon Consulting met again on May 4, 2018. As both Ms. He and Mr. DeThomasis testified, and the minutes reflect, the Project was now ahead of schedule:

The revised construction schedule indicates that the contract completion date will be met. The revised schedule indicates completion of the west half of the project by the end of June and commencement on construction on the east half in early July. The City noted that the revised schedule shows the Bull and Barrel being impacted sooner than previously indicated. The City requested that the Bull and Barrel not be impacted until July 10th so that their patio can be open for the July long weekend.

Mr. DeThomasis explained that at this point, because the Project was ahead of schedule, Lepera wanted to begin work on the southeast quadrant, then potentially the northeast quadrant. He further testified that the City did not want Lepera to do so because the City did not want to affect the Bull & Barrel until July 10, 2018.

58Ms. He confirmed in her testimony that while the City agreed Lepera could start work on the east side of Ouellette, staff emphasized that the Bull & Barrel must be able to maintain its patio until July 10. Therefore, any work on the east side would have to concentrate on the southeast quadrant.

59It appears that Mr. Komsa and Ms. He met sometime on May 4 following the City’s meeting with Lepera. He sent an email that afternoon expressing concern about the change in schedule:

Hi Jane,

Just a follow up after our meeting today. We are very disappointed that there has been a change to the schedule. This change will have major Impact on our business levels in July as we thought our block would be phase 4 of the construction originally planned for August and September. Phase 4 was supposed to be Tuscarora to Wyandotte as per our meeting in February.

We based major business decisions such as events, advertising/promotions, staffing based off those conversations. I understand that those may have not been tight timelines but adding an entire month is going to be even more devastation to our bottom line than previously expected. We have events planned till the end of July.

We were told that we would be part of the conversation with the City and the construction company on an ongoing basis to express our concerns in February. This obviously did not happen in this case. Hopefully, it can happen in the future.

Anything you can do to give us more time in July with the patio up will help to minimize business loss due to the construction.

60He wrote to Ms. He again on May 8, 2018 to request a meeting to show her photographs of lineups at the Bull & Barrel on Wednesdays and Saturdays and to go over July income numbers. Ms. He responded shortly after:

I have sent an email to Lepera to review their schedule and see if they can arrange the work elsewhere till July 15. Let me follow up with them and we can meet on site to review the pictures with the contractor so that they have a good idea how to setup the site….

June and July 2018

61The parties agree that the construction on the west side of Ouellette was completed by the end of June 2018, and that from July 1, 2018 through August, the Project work was carried out on the east side of Ouellette between Elliott and south of Tuscarora (the southeast quadrant). The chronology of events becomes more detailed here with the ongoing work related to the City’s Project and discussions emerging about both the Landlord’s intended work and the Claimant’s patio canopy work.

62There was another construction meeting on June 5, 2018. Mr. DeThomasis testified, and the meeting minutes reflect, that the Project was ahead of schedule and that Lepera intended to commence work on the east side of Ouellette the week of June 11, 2018. Both Mr. DeThomasis and Ms. He testified that the City did not want Lepera to do so, so that the Bull & Barrel would not be affected earlier than previously discussed. The minutes, under an item “Bull & Barrel”, indicate that “the current patio will be maintained until July 14th”. Paragraph 22.3 notes:

The Bull and Barrel raised concern with respect to the sidewalk width being maintained during construction. They are looking for 2.4 metres as they have line ups outside of the building during peak times. The Contractor will paint onsite.

63Ms. He testified that on June 18, 2018, she learned that the Landlord was planning to undertake its own work on the building, including brick work and an elevator shaft. She indicated that when she was contacted by the Landlord’s architect, her initial response was that the Landlord’s work would have to wait until the City’s Project was completed. However, when she learned that the Landlord’s work would require digging in the City’s right-of-way, she determined that the City would need to coordinate the work with the Landlord.

64On June 19, 2018, Mr. Komsa wrote to Ms. He and other City staff concerning information he received from the Windsor Parade Corporation about the upcoming Canada Day parade:

Hi All,

I just received a visit from David Grimaldi from the Windsor Parade Corporation at The Bull and Barrel. He has told me that the City of Windsor and DWBIA officials has deemed Ouellette Ave. unsafe for pedestrians from Elliot to Wyandotte for the Canada Day Parade on July 1st. This means there will not be any pedestrians allowed on Ouellette to not only watch the parade but to come into The Bull and Barrel entrance. Is this true?

A lot of the constructions plans from the start were based around leaving this area open for the parade. We have also planned our seven year anniversary event that day around the parade, into the afternoon and evening. My entrance on Ouellette ave. has to be assessable from 11:00am on that day. Not allowing pedestrians to watch the parade on this section of street is against everything explained to me from the beginning. David expressed to me that he does NOT agree with decision. He believe[s] the area can be open during the parade without any issues.

Again, I am very disappointed and extremely frustrated with the lack of communication and organization through this construction process.

65Ms. He responded a short time later and she and Mr. Komsa continued an email exchange that day. In her initial response, she indicated:

This decision was made in the meeting between the Canada Day parade committee, DWBIA and City's administration. It is only for a short period of time, my understanding is between 10:30am to 1:00pm. And after that, Ouellette will be open again. Actually, in practice, right after the parade going through this block, the east side can be open to the public as it is now.

There was some back and forth as to whether this meant that there would be no access to the Bull & Barrel, with Mr. Komsa expressing frustration at not having been consulted. Ms. He clarified that the Project team was not part of the decision by City administration, and had been informed of the decision the week prior. She noted, “[h]owever, we understand City’s concerns on the healthy and safety perspective. And we will do what we can to ensure the site safety.” When Mr. Komsa again asked what this meant for access to the Bull & Barrel, Ms. He indicated her understanding that the side door (the Tuscarora entrance) would be used to access the restaurant.

66The record shows further discussion about the parade and access to the Bull & Barrel through June and it appears that plans for the parade evolved. During cross-examination, Mr. Komsa indicated that although the parade did pass by the Bull & Barrel it was not like in previous years when the parade would stop in front of the business and musicians would play. He described the parade as simply walking through the area on the east side of Ouellette. This corresponds with the Bull & Barrel’s calendar log entry for that day:

The parade could not stop and pedestrians were not allowed to watch between patio and street. The fencing was confusing for customers. Walking traffic was down in this section significantly causing a huge loss in business.

67Sometime around July 5, 2018, the east side of Ouellette from Wyandotte to Tuscarora was closed to vehicular traffic. The west lane had not yet reopened, meaning that both lanes were closed from July 5, 2018 until the west lane opened on August 13, 2018.

68The next event in the Project relates to the bus bay on Ouellette and is a source of disagreement between the parties. The City called a construction meeting on July 16, 2018 to discuss concrete test results that did not meet its requirements. Mr. DeThomasis explained that when concrete is poured, it is expected to reach a certain strength within seven days in order to be acceptable. The concrete for the bus bay was not at the acceptable strength at the seven-day mark, and the concern was that it would therefore not meet the required strength at 28 days. In the minutes, the City “confirmed its position that it expects [Lepera] to meet the Contract completion date.”

69The City indicated that it would not accept the concrete and so Lepera removed it and poured new concrete at no extra cost to the City. Mr. DeThomasis and Ms. He testified that this may have put the Project one to two days behind schedule, as it was ahead of schedule at this point in time. During this same meeting, it was discussed that the time Ouellette would be closed to traffic in both directions should be limited. Mr. DeThomasis testified that this was anticipated to be 1-2 week period of time.

70Correspondence between Mr. Komsa and Ms. He on July 19, 2018 indicates that Lepera was working on the bus bay at that time. Mr. Komsa also inquired about the overall status of the Project:

Hope all is well. I obviously see what is going on across the street with the bus lane. I know this has pushed the project back from the completion date as explained to me from the contractors. We have a number of events in September November that we have booked that we owe to our customers to let them know if the construction/patio will be complete. We also have our contractors on stand by and ready to reinstall the new patio. Can we get an update on when the city's best guess of the completion date is? I know it is a challenge to get an exact date but an update would be very helpful for a number of reasons.

Ms. He responded later that day:

This is unfortunate happening on the concrete bus bay paving that didn't pass our quality control requirements. However, Lepera is making effort to catch up the work schedule. We will know better early next week. The original completion date is September 28 in the contract, let us know the exact … event dates and we will try to coordinate with the contractor.

71While Mr. Komsa indicated in examination-in-chief that he understood the bus bay would cause a delay in the project, he agreed under cross-examination that it may not have delayed the overall project completion date, and noted that the day of the second pour may have impacted vehicles travelling on Ouellette.

72The following week, on July 26, 2018, Mr. Komsa advised Ms. He that the Bull & Barrel would be closed on Mondays for the duration of construction:

We have decided that we are going to close on Mondays when our patio has to be down for the duration of the construction. It just doesn't make sense financially to be open. The reason I pass this along is hopefully they can do some of the major cement work and such on Mondays. Hope this helps.

To which Ms. He responded:

Thank you for the email. As we indicated, that the minimum date that you can keep the patio is to July 14 or even further. Currently due to the concrete issues on the west side, Lepera is a bit behind schedule and they are trying to catch up. Your patio area may not be affected in next 1 or 2 weeks. Right now they are concentrated on the block between Elliott and Tuscarora.

It's for your considerations if you would like to extend at least one more week, that's doable. Either Adam Mourad or myself will call you to discuss a bit further.

73While the parties generally agree to this timeline of events, the specific aspects of the Project during this time period are in dispute. Mr. Komsa describes the work on the west side of Ouellette as being not far from the Bull & Barrel’s front doors and as involving cement cutting and lane closures. He also describes Tuscarora, which the parties agree had been closed for watermain work for one week in 2017, as a “loading zone” in June 2018 and a place for construction workers to park.

August 2018

74There appeared to be a problem with street lighting on Tuscarora around August 9, 2018, which prompted Mr. Komsa to contact Ms. He. She advised that Enwin would work on this and was attempting to have streetlighting installed by the weekend.

75The City issued a Construction Notice on August 10, 2018 to indicate that starting Monday, August 13, 2018, after 10 a.m. southbound Ouellette would be open to traffic and that northbound Ouellette would be closed. The notice further indicates that the contractor would be working on the east side of Ouellette in the coming weeks until the streetscape improvements are completed and that pedestrian access and access to businesses within the Project boundary would remain available.

76During the first part of August, construction meeting minutes and Mr. DeThomasis’ testimony described the Project as progressing with Lepera remedying minor deficiencies in a short period of time.

77There was another construction meeting on August 14, 2018, and Mr. DeThomasis testified that there were some revisions to drawings for sidewalks and curbs that could have delayed the Project by one to two weeks. The minutes confirm that it would be difficult to complete the Project by the tendered completion date, and that the contractor would provide a revised schedule for the next meeting on August 28, 2018. The minutes also refer to the Bull & Barrel being requested by Lepera to remove its patio and associated furniture by August 20, 2018.

78The parties agree that in July, the Claimant filed an application to the City for an encroachment for a new canopy and advised City contractors that they would be installing footings for a new patio canopy. The evidence during the hearing pointed to this being a requirement of the City, as the Claimant originally planned for a canopy that would not require such footings. All understood that Lepera would need to complete its sidewalk installation before the Claimant’s contractor, Fortis, could core the new sidewalk to install the footings for the canopy. There is some correspondence prior to the patio being removed and following the August 14, 2018 construction meeting regarding the need to coordinate the patio work with Lepera. The Claimant removed its patio over the weekend of August 18-19 and it was cleared by August 20, 2018, at which point the Project work could begin directly in front of the Bull & Barrel.

79On August 16, 2018, the City provided Mr. Komsa with information, including a sketch, regarding pedestrian access on Ouellette starting August 20, 2018. Ms. He testified that this was the City’s original plan for access, which was to provide weekend pedestrian access on the east side of Ouellette. Mr. Komsa expressed his concern about the City’s plan in a responding email on August 17, 2018:

Thank you for the update. We want to put on the record that this is not an ideal situation. We have been through a number of construction projects on Ouellette Ave and there has always been through access for pedestrians. This took us completely by surprise as we thought It was a given that there would be a walkway to our business on our side of the street.

We appreciate you accommodating the weekends but this will essentially kill whatever weekday business we have left during those weeks.

80One week later, on Friday, August 24, 2018, Mr. Komsa wrote to City engineering staff, copying Ms. He and others on the Project team, to inquire about the walkway on the east side of Ouellette. He sent the following email at 3:04 p.m.:

Just double checking that there is going to be a pedestrian walkway on the east side of the street for the weekend as explained below. Business levels has decreased significant this week and I fear the weekend will b worst without what was promised below.

Ms. He responded at 3:20 p.m.,

I was on site this afternoon and Lepera is working on the walkway. It will be ready before end of today. If any questions please advise.

81At the next construction meeting, on August 28, 2018, Lepera presented the revised construction schedule, which the minutes describe as follows in paragraph 1.5:

The Contractor has provided a revised construction schedule (attached). The revised schedule indicates the project will be complete by the end of September. The Contractor noted that this is very aggressive and assumes no unforeseen issues/ setbacks.

82The parties agree that due to the construction, there was a period of time between mid-August and October 21, 2018 when pedestrians were not able to walk from Wyandotte down the east side of Ouellette to the Bull & Barrel. Mr. Komsa testified that this access was not available during this time period. Ms. He and Mr. DeThomasis testify that it was sometimes available. Photographs show the sidewalk adjacent to the Bull & Barrel still intact through August and to September 5, 2018.

September 2018

83In early September, Lepera began its excavation of the existing sidewalk on the east side of Ouellette. The sidewalk adjacent to the Bull & Barrel began to be removed on September 6, 2018. Photographs show, and several witnesses testified, that the sidewalk excavation revealed some brickwork in disrepair at the Tuscarora end of the building. Mr. DeThomasis testified that while he initially thought this was a cosmetic issue, further sidewalk excavation revealed a gap in the concrete supporting the structure.

84Ms. He contacted the Landlord’s architect that morning to arrange an on-site meeting, noting in her email “this is a situation that we have to address ASAP, otherwise that would affect our schedule.” It appears that they were able to arrange a meeting for the following morning.

85Mr. DeThomasis indicated that as of the next day, September 7, 2018, Lepera did not know the extent of repairs the Landlord would need to complete and that Lepera proceeded to replace the excavated sidewalk area with stone to make a safe access for pedestrians. Ms. He’s testimony confirms this.

86Ms. He and Mr. DeThomasis testified, and photographs confirm, that there was sometimes pedestrian access on the east side of Ouellette in front of the Bull & Barrel and to Wyandotte on the gravel walkway that replaced the sidewalk. There is a photograph, dated September 14, 2018, that shows Lepera’s black construction fencing at the corner of Wyandotte and Ouellette, in front of the Shoppers Drug Mart, with a sign that indicates “Sidewalk Dead End At Tuscarora”. There was an opening in the fencing leading to the gravel walkway that runs along the east side of Ouellette to the Bull & Barrel.

87Several photographs show pedestrians heading north on Ouellette using this walkway in front of the Bull & Barrel. It is unclear whether they are headed to Wyandotte or to the NCCE next to the Bull & Barrel. Mr. Komsa testified that it was the latter, that these pedestrians are NCCE students. He disagreed that pedestrian access was available for the Bull & Barrel on the east side of Ouellette.

88Ms. He testified that the City tried to keep this access open on weekends as much as it could. She indicated that the City’s original plan was to close the access for two to three weeks starting from around August 20, 2018, and would maintain weekend access from Fridays at 5 p.m. during those weeks. That plan changed following the next course of events.

89On September 10, 2018, the City issued to the Landlord an Order to Comply pursuant to s. 15.9(4) of the Building Code Act, 1992 (the “Order to Comply”). It references an inspection by the City on or about September 7, 2018 and pertains to the south wall of the building (at Tuscarora). As Mr. Vani testified, and the Order to Comply reflects, the building was deemed unsafe in accordance with s. 15.9(2) of the Building Code Act:

… A portion of the brick along the south wall has been removed and a deteriorated support member has been exposed. It is determined that this element is no longer a suitable structural support for the masonry and there are areas that have deteriorated brickwork. Due to these conditions this building is deemed UNSAFE.

The Order to Comply required the Landlord to retain the services of a professional engineer to prepare a report, to be submitted to the City Building Department, identifying the repairs to render the building safe. It further required all repairs to be performed under the review of the professional engineer and under a building permit “forthwith”.

90The Landlord retained Petretta Construction Inc. (“Petretta”) as its contractor. There were references throughout the hearing to subcontractors completing various aspects of the Landlord’s work; however, for ease of reference, the Tribunal will refer to Petretta.

91Following the Order to Comply, there was discussion on September 11, 2018 among the Project team and Mr. Komsa regarding provision of a pedestrian crossing from the west side of Ouellette at Tuscarora. By all accounts, it had now become apparent that the Landlord’s work would require use of the eight-foot walkway in front of the Bull & Barrel that Mr. Komsa previously understood would remain available. His concerns are set out in an email to Ms. He and others that afternoon:

Some details of the construction have been only brought to my attention today. My understanding is the City of Windsor gave Petretta Construction access to do the elevator shaft foundation work for NCCE which will require the use of the only 8 feet walkway In front of Bull and Barrel. This work apparently is starting Thursday. This essentially closes us due to the fact that we can not use either of our double doors entrances on Ouellette for the duration of the work. This plan was put together without my knowledge and DOES NOT work for us.

A plan needs to be developed that gives us access to one of our sets of double doors and a public walkway to our building on our side of the street from Wyandotte or a crosswalk at Tuscarora after 5pm daily.

Again, with the current plan my only option is to close. We cannot and are not allowed to operate a restaurant/bar out of a single door with a capacity our size. This would be financially devastating and has long term consequences for our business.

Can I propose a meeting tomorrow onsite with everyone to discuss?

92There is then an email exchange between Ms. He and the principal of Lepera. Ms. He testified that Mr. Komsa had requested a pedestrian crossing from the west side of Ouellette to Tuscarora and that she initially resisted the idea because she was concerned about the Project schedule, which had now changed with the structural work the Landlord was required to complete. She did not want to divert a crew to the crossing and cause further delay to the schedule.

93It appears that there was a meeting among the Project team, Mr. Komsa, and the Landlord’s representatives on September 12, 2018. In advance of this meeting, the Landlord’s project team submitted site access phasing plans. Neither the Landlord nor any representatives from its project team testified during the hearing. Ms. He explained that the plans were submitted based on Ministry of Labour requirements due to the different contractors on site. She emphasized that these were Petretta’s plans and that they were not always followed.

94Ms. He soon reconsidered her position about the crossing. She testified that the Landlord’s repairs were not progressing as quickly as the City hoped, and that in addition to Mr. Komsa’s request, the Landlord requested a crossing for students of the NCCE, many of whom travel by bus and would need to cross from the west side of Ouellette. She directed Lepera to install the crossing, which both she and Mr. DeThomasis testified was available for use the weekend of September 14, 2018. Ms. He’s email of that Friday to Mr. Komsa and the Project team confirms the details of the crossing:

Dear all,

Further to our Wednesday meeting (Sept. 12, at 3:30pm), we had an internal discussion with City, Dillon and Lepera.

Based on our meeting discussion, the access to 660 Ouellette is an important matter. We have directed our Contractor to arrange a temporary pedestrian crossing at Ouellete-Tuscarora when east side Ouellette sidewalk not available from Wyandotte. This access will be available before end of today (Friday Sept. 14) and will remain accessible during this weekend. Starting from Monday, Lepera will do road cut work fronting 660 Ouellette and the temporary pedstrian (sic) access at Tuscarora -Ouellette won't be available until around 5:00pm (thank you for Bull & Barrel's corporation). Once Lepera finish the road cut work, which will take a few days, this temporary access will remain accessible with flagging person during day time until the time that sidewalk accessible from Wyandotte. Necessary changes on the detour drawings have to be made by Lepera and your contractor. They should have known about it or might already done the work.

Meanwhile, for phase 1 work fronting your building, can you confirm the following:

• when the underground execuvation (sic) work will start and

• please confirm the right-of-way permit from public work is in place.

• when the building column repair works will start and finish fronting Bull & Barrel section facing Ouellette?

For the associated costs, City will pay for the temporary pedestrian crossing at Tuscarora. We will monitor the work plan and track associated costs. Hopefully with a good plan and corporation from all parties, it can work out. …

95A Construction Notice from the City, issued on Tuesday, September 18, 2018, confirms the availability of the crossing and notes that it “is needed during the sidewalk construction on the east side of Ouellette Avenue. Please watch for pedestrians and use extra caution.”

96Ms. He testified that once the Landlord began its excavation work, that stopped the pedestrian access on the east side of Ouellette from Wyandotte. Prior to this, that pedestrian access was available for weekends.

97It is unclear when the Landlord’s work began. Correspondence on September 19, 2018 indicates that Lepera needed to complete some of its work in order to fully push back its fencing to make room for Petretta. Mr. DeThomasis testified that Lepera completed that work on Wednesday, September 19, 2018 and pushed back their fences by Thursday, September 20, 2018.

98Ms. He testified that as of September 20, 2018, Petretta estimated that it would complete the structural repairs and elevator excavation and foundation work within one week. She agreed under cross-examination that Petretta’s major work, involving digging, did not start until September 24, 2018.

99Also on September 20, 2018, Lepera notified the City of its intent to claim costs associated with delays associated with work being completed on the east side of Ouellette by other contractors. Mr. DeThomasis testified that at this point, Lepera was running into problems with other contractors being on site such that Lepera could not complete its Project work.

100This is reflected in construction meeting minutes on September 25, 2018 in paragraph 1.5:

The Contractor advised that due to the building issues, repairs and renovations being undertaken at 660 Ouellette, they are now unable to meet the completion date in the contract. The Contractor anticipates that construction will be complete by the end of October 2018.

The minutes also indicate, in paragraph 13.3, that “[a]ccess to the building is currently available. The building owner’s contractor currently has their work site delineated in front of the Bull and Barrel”. In paragraph 16.2, the minutes indicate that a “fenced pathway is in place for pedestrians to access the building.”

101The original Project completion date was September 28, 2018, as per the City’s contract with Lepera. The Landlord’s work and the Project were ongoing as of that date.

October and November 2018

102The next construction meeting was on October 9, 2018. The minutes and Mr. DeThomasis’ testimony reinforce the theme from the previous meeting, that Lepera had to focus its work in other areas while the Landlord’s work continued. The anticipated completion date for the Project was “by the end of October 2018, with paving and miscellaneous clean-up works in early November.” At this point in time, Lepera was focused on pouring the sidewalk on the east side of Ouellette from Wyandotte to 660 Ouellette. Mr. DeThomasis testified, as reflected in the minutes, that Lepera was hopeful the Landlord’s work would then be completed so that Lepera could focus on the work in front of the Bull & Barrel.

103While the precise date of Petretta’s completion of the structural repairs is unclear, Ms. He testified that the City was advised by Petretta on October 10, 2018 that the repairs were completed. At this point, Petretta moved on to work on the elevator shaft.

104The sidewalk in front of the Bull & Barrel was poured on Monday, October 22, 2018. Mr. DeThomasis testified that it was done then because the business was closed on Mondays.

105The next construction meeting, held on October 23, 2018, as well as Mr. DeThomasis’ testimony, indicate that Lepera was still waiting for Petretta to complete its work at 660 Ouellette so that Lepera could complete the sidewalk pour in that section. Lepera then estimates its Project to be “largely complete by November 9, 2018, with some unit paving and furniture installation the following week.”

106The sidewalk on the east side of Ouellette was opened for the weekend of October 26, 2018.

107After completion of the sidewalk, Lepera was able to complete other aspects of the Project, including interlocking brick and pavers.

108The Bull & Barrel held a special event the weekend of November 11, 2018 in conjunction with Tourism Windsor Essex Pelee Island. Ms. He testified that the City worked with Mr. Komsa to arrange a bus to drop tourists in front of the Bull & Barrel, so that they could walk a red carpet into the establishment.

109The Project was substantially completed on November 23, 2018, with Ouellette fully opened to vehicular and pedestrian traffic.

ISSUES AND ANALYSIS

110The key issue in this case is whether the City’s Project, had it not been undertaken by statutory authority, would give rise to liability. In other words, the question is whether the Claimant would be successful in a claim for private nuisance. To provide context for that question, it is necessary to first consider the statutory framework for injurious affection, and then the line of leading cases that have interpreted the Act.

111The Act provides compensation for injurious affection in s. 21:

Compensation for injurious affection

21 A statutory authority shall compensate the owner of land for loss or damage caused by injurious affection.

A claim for injurious affection must be made within one year after the damage is sustained or becomes known, in accordance with s. 22. There is no dispute that the Claimant met this requirement. Nor is there any dispute that the Claimant, as a tenant, may claim compensation under the Act, given that the definition of “owner” includes a tenant.

112Injurious affection is defined in s. 1(1) of the Act and is applicable either when part of a claimant’s land has been taken by a statutory authority, or when no land is taken. As there was no taking in this case the applicable part of the definition is s. 1(1)(b):

“injurious affection” means,

(b) where the statutory authority does not acquire part of the land of an owner,

(i) such reduction in the market value of the land of the owner, and

(ii) such personal and business damages,

resulting from the construction and not the use of the works by the statutory authority, as the statutory authority would be liable for if the construction were not under the authority of a statute,

and for the purposes of this clause, part of the lands of an owner shall be deemed to have been acquired where the owner from whom lands are acquired retains lands contiguous to those acquired or retains lands of which the use is enhanced by unified ownership with those acquired.

113Three rules are contained in this definition. First, there must be work done by a statutory authority. Second, it must be the construction and not the use of the works that causes the damage. Third, the action of the statutory authority must be one that would give rise to liability if it were not taken by a statutory authority.

114The first two requirements are clearly met in this case. Only the third requirement is at issue, which raises the question: if the Ouellette Avenue streetscaping work had not been done under statutory authority, would the Claimant have been successful in a claim for private nuisance?

115There is a long line of cases that have considered the elements of private nuisance. The Tribunal will focus its discussion on the leading court cases and relevant decisions by the Tribunal and its predecessors, the Ontario Municipal Board and the Land Compensation Board.

116To find nuisance, there must be an interference with the claimant’s use or enjoyment of land that is both substantial and unreasonable. This two-part test is longstanding in the common law and was clarified by the Supreme Court of Canada in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, [2013] 1 S.C.R. 594 (Antrim).

117Counsel disagreed on the utility of cases decided prior to Antrim. While Mr. Bondy focussed on cases that have been decided following Antrim, Mr. Brode submitted that Antrim has not overturned the preceding cases. Having reviewed the authorities submitted by counsel, as well as many of the authorities cited within them, the Tribunal offers the following comments to frame its analysis.

118Antrim is without question the leading authority on the law of private nuisance and its proper application in a claim for injurious affection. One area in which it provided much-needed clarity is the consideration of the utility of the public authority’s conduct in the reasonableness analysis. This will be discussed in the applicable section of the Tribunal’s analysis.

119Every case for injurious affection presents unique facts, which the Tribunal must carefully consider in analysing the present case. The Tribunal accordingly must bear in mind the unique facts of Antrim, where the construction of a new section of provincial highway permanently diverted traffic away from the claimant’s truck stop, which, prior to the construction, was located on a highway that formed part of the Trans-Canada Highway system. The claimant then found itself located on a closed highway and suffered significant—and permanent—damages. The Court restored the Order of the Ontario Municipal Board, which had been set aside by the Court of Appeal, upholding the Board’s award of $58,000 for business loss and $335,000 for market value.

120Given the unique and unusual circumstances of Antrim, it is necessary for the Tribunal to consider a broad range of Court and Tribunal decisions to draw factual similarities and to make distinctions. The Tribunal is, of course, mindful of the binding nature of the Court decisions as compared to Tribunal decisions that may provide some persuasive value.

121The Tribunal agrees with counsel for the City that there is value in also considering cases that were decided prior to Antrim. In doing so, the Tribunal is careful to consider the clarified legal analysis of reasonableness that emerged from the Antrim Court, and agrees with Mr. Bondy’s submission that there is, in some of the earlier cases, more emphasis on public utility than is warranted post-Antrim. The Tribunal has considered this in its analysis and turns now to the two-part test for nuisance.

1. Was the Interference Substantial?

122The first part of the test, whether the interference is substantial, has been interpreted as a threshold that must be met in order to proceed to the second part of the test, the reasonableness analysis. For an interference with property to be substantial, it must be “non-trivial” (Antrim, at para. 19). In Antrim, the Court explained the utility of this first part of the test:

Retaining a substantial interference threshold underlines the important point that not every interference, no matter how minor or transitory, is an actionable nuisance; some interferences must be accepted as part of the normal give and take of life. Finally, the threshold requirement of the two-part approach has a practical advantage: it provides a means of screening out weak claims before having to confront the more complex analysis of reasonableness. (para. 21).

123While there are not specific categories of substantial interference, the Court explains the threshold as amounting “to more than a slight annoyance or trifling interference” (para. 22). In arriving at this conclusion, the Court cited with approval a series of its previous judgments:

[22] In St. Lawrence Cement, the Court noted that the requirement of substantial harm “means that compensation will not be awarded for trivial annoyances”: para. 77. In St. Pierre, while the Court was careful to say that the categories of nuisance are not closed, it also noted that only interferences that “substantially alte[r] the nature of the claimant’s property itself” or interfere “to a significant extent with the actual use being made of the property” are sufficient to ground a claim in nuisance: p. 915 (emphasis added). One can ascertain from these authorities that a substantial injury to the complainant’s property interest is one that amounts to more than a slight annoyance or trifling interference. As La Forest J. put it in Tock v. St. John’s Metropolitan Area Board, 1989 CanLII 15 (SCC), [1989] 2 S.C.R. 1181, actionable nuisances include “only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes”, and not claims based “on the prompting of excessive ‘delicacy and fastidiousness’”: p. 1191. Claims that are clearly of this latter nature do not engage the reasonableness analysis.

[23] In referring to these statements I do not mean to suggest that there are firm categories of types of interference which determine whether an interference is or is not actionable… Nuisance may take a variety of forms and may include not only actual physical damage to land but also interference with the health, comfort or convenience of the owner or occupier: Tock, at pp. 1190-91. The point is not that there is a typology of actionable interferences; the point is rather that there is a threshold of seriousness that must be met before an interference is actionable.

124There was little debate in this case as to whether the interference with the Claimant’s business was substantial. As Ms. He testified, there is a normal disturbance associated with construction. Certainly, when there was construction activity occurring in front of the Bull & Barrel, it was more than a trivial annoyance.

125The construction directly in front of the building caused noise, dust, and at times changed how pedestrians accessed the building. Prior to construction directly in front of the Bull & Barrel, the Tribunal can accept, based on Mr. Komsa’s testimony, that there would have been some annoyances to customers who wished to sit on the patio. Again, construction is noisy and dusty, and the Tribunal accepts that there would have been times where this was not an inviting condition for patio patrons. The Tribunal can also accept that there were times when vehicular access was inconvenient, particularly when both lanes of Ouellette were closed during July and August of 2018. The Claimant also experienced business losses during that time. All of these events point to more than a trivial annoyance, and the Tribunal finds that the interference in this case was substantial.

126Having found that the Claimant meets the threshold of substantial interference, the Tribunal must consider whether the interference was unreasonable.

2. Was the Interference Unreasonable?

127This second part of the nuisance test requires a balancing exercise in order to determine “whether, in light of all of the circumstances, it is unreasonable to expect the claimant to bear the interference without compensation” (Antrim at para. 45).

128There are various factors the Courts and Tribunal have considered in order to answer the reasonableness question, namely: (1) the severity of the interference; (2) the character of the neighbourhood; (3) the utility of the defendant’s conduct; and (4) the sensitivity of the plaintiff. The Antrim Court is clear that these factors are not a mandatory checklist to be applied in every case. Rather, the relevant factors must be appropriately balanced in the unique circumstances of each case. The Court notes, at paragraph 54, that these factors “are simply examples of the sorts of criteria that the courts have articulated as being potentially of assistance in weighing the gravity of the harm with the utility of the defendant’s conduct”.

129The factors were earlier set out by the Supreme Court of Canada in Tock v. St. John’s Metropolitan Area Board, [1989] 2 S.C.R. 1181, 1989 CanLII 15 (Tock), which is cited in Antrim. The Tock Court, in describing the traditional approach to private nuisance, concluded:

It was therefore appropriate to interpret as actionable nuisances only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes. In effect, the law would only intervene to shield persons from interferences to their enjoyment of property that were unreasonable in the light of all the circumstances.

The courts are thus called upon to select among the claims for interference with property and exclude those based on the prompting of excessive "delicacy and fastidiousness", to employ the terms of Knight Bruce V.-C. The courts attempt to circumscribe the ambit of nuisance by looking to the nature of the locality in question and asking whether the ordinary and reasonable resident of that locality would view the disturbance as a substantial interference with the enjoyment of land. Among the criteria employed by the courts in delimiting the ambit of the tort of nuisance are considerations based on the severity of the harm, the character of the neighbourhood, the utility of the defendant's conduct, and the question whether the plaintiff displayed abnormal sensitivity (pp. 639-40).

130Additionally, in Antrim, the Court noted that that the frequency and duration of an interference may be a relevant factor in some cases (para. 26), and that a prolonged interference is more likely to attract a remedy (para. 42). It also elaborated on a number of factors that are relevant to the consideration of the utility of the defendant’s conduct, which will be discussed in the applicable section of the Tribunal’s analysis.

131The Ontario Court of Appeal elaborated on the factors in Mandrake Management Consultants Ltd. v. Toronto Transit Commission, [1993] O.J. No. 995, 1993 CanLII 9417 (Mandrake), a case discussed by the Antrim Court with respect to the fourth factor, the utility of the defendant’s conduct.

132The application of these factors is necessarily fact-specific. However, Mandrake offers an explanation for each factor that may guide in their application, which the Tribunal will discuss in the proceeding analysis.

133As the Antrim Court explains, it may not be necessary for the Tribunal to consider each factor in every case. The balancing exercise is one of balancing the factors that are relevant in a specific case in order to determine whether the interference is unreasonable. In this case, the Tribunal heard submissions on each of the factors and accordingly will consider them to determine whether the interference is unreasonable.

134To summarize the balancing exercise, it is one of balancing the gravity of the harm against the utility of the City’s conduct. The Tribunal will first consider the factors that point to the gravity of the harm, and then will consider the utility of the City’s conduct.

a. The Severity of the Interference

135The severity of the interference considers the impact of the construction on a claimant. The Court in Antrim offered the following guidance on this factor:

[84] The first factor, the severity of the interference, recognizes that the greater the impact of the interference, the more likely it will be characterized as unreasonable. …[T]here is significant overlap between this factor of the reasonableness analysis and the first part of the test for nuisance -- whether the interference is substantial.

[85] The substance test and the severity factor ask essentially the same question -- how serious is the harm caused by the interference -- but do so for different purposes. In asking whether the interference is substantial, the court seeks to determine whether the actions of the defendant have caused any harm at all, and if so, whether it is sufficiently material to justify recognition, and possible intervention, by the courts. Where the interference is so trivial that it does not pass this stage of the test, there will be no need to consider whether the interference is unreasonable in the circumstances.

[86] … At this stage, however, the purpose of the inquiry is not to determine whether the interference alleged is of a sort that warrants the recognition of the courts (the threshold test), but rather whether the interference is sufficiently severe that, when viewed alongside the other elements of the reasonableness analysis, the plaintiff should not be expected to tolerate it in the circumstances.

136In this case, the Tribunal must scrutinize the specifics of the Project that the Claimant alleges interfered with its business. The Claimant submits that there were significant access restrictions for pedestrian and vehicular traffic, as well as a dusty, dirty, noisy environment that caused pedestrians to avoid the area and disturbed patio customers. All of this, in the Claimant’s submission, caused its significant business losses in the order of $273,845.50. Put another way, the Claimant submits that it typically made over $100,000 per year before taxes (based on 2014 to 2018), and in its 2018 fiscal year, it made only $486 in pre-tax income.

137The Tribunal will first consider the access issue, then collectively dust, noise and dirt, and finally business loss. Though the Tribunal understands that the duration of the Project may be a separate consideration in the reasonableness analysis, it finds that the duration is intertwined with the access, dust, and noise concerns in this case, and will address duration within those contexts.

i. Access

138The question of access is a frequent one in claims for injurious affection. There is a long line of cases decided prior to and following Antrim that have considered access to a claimant’s property during, and in some cases after, construction. In many cases the access is a temporary interference during the construction, while in others, like Antrim it is a permanent condition.² Regardless of whether access problems caused by the construction constituted temporary or permanent interference, the Tribunal must examine the severity of that interference or harm on a claimant’s property. Decisions of the Tribunal’s predecessors are of assistance in this regard.

139In the Ontario Municipal Board’s decision in R. Jordan Greenhouses Ltd v. Grimsby (Town), [2015] O.M.B.D. No. 95, 2015 CarswellOnt 2187 (Jordan), restricted access to the claimant’s business was a temporary condition, but it was one that significantly impaired access to the business during the peak of its season. That claimant operated a garden centre that relied solely on vehicular access during a limited spring season. The municipality’s project impaired vehicular access to the business squarely within its peak season, and included what the Board found to be an unrequired two-week road closure and an arbitrary project timeline. The Board awarded the claimant damages for its significant business losses.

140In contrast is the Ontario Municipal Board’s decision in Mid Transportation Services Ltd. v. Windsor (City), [1994] O.M.B.D. No. 519 1994 CarswellOnt 5233, (Mid Transportation). The City’s project in that case involved a nearly two-year reconstruction project for Huron Church Road, a high volume highway carrying significant international truck traffic between Highway 401 and the Ambassador Bridge. Prior to the construction project, the claimant operated a vehicle sales business on Huron Church Road. It had two vehicular access points prior to the construction. The construction created a cul-de-sac of one of its access points, the flanking side street, and while it retained access to Huron Church Road after the project, the project included construction of a raised median that prohibited left turn access directly in front of the business. There were different temporary driveway access points during the construction project that the claimant submitted caused customers to be unwilling to travel to the business.

141It is important to note that the project involved the construction of a permanent median that changed access to the claimant’s business and there is significant discussion of the public safety utility of the project that should now be viewed in the post-Antrim context. Though Mid Transportation preceded Antrim, the Tribunal finds its discussion of the access issues caused by a construction project to be of assistance. The Board acknowledged the inconvenience and difficulty of access and ultimately found that reasonable access was available to the claimant at all times:

15. The Board also finds that at no time was the Claimant denied good and reasonable access to his property and that signage directing motorists as to how to proceed was clear and appropriate during both Phases …

16. There was always at least one driveway open. The only interval that no driveway access to Huron Church existed was during the hours that the storm and water lines were constructed. At that time, the Pool Avenue driveway remained open. ...

17. In view of all the measures instituted to provide both access and clear signage as to the means of access, the Board finds as a fact that in no way was access so difficult or so uninviting to the passerby or customer that they would have been deterred from entering the premises had they otherwise wished to do so. Put another way, means of reasonable access was not withdrawn although access points from Huron Church and the access route for travellors from the south underwent changes. Although some inconvenience and difficulty occurred to the claimant as to changed access, dust, noise and other manifestations of a large road reconstruction, this disruption was not of an unreasonable or unbearable magnitude, having regard to all the circumstances.

142In an earlier case, the Board dismissed two claims for injurious affection brought by two main street businesses in downtown Port Hope because the municipality’s replacement of a bridge prevented through traffic for just over eight months (Coady v. Port Hope (Town) (1987), 38 L.C.R. 66 (Coady). The Board, in dismissing the claims, emphasized the temporary nature of the interference with access, which it found to stand in contrast to the permanent interference that occurred in Loiselle and Larson. The public utility of the Town’s project also appeared to weigh heavily in the Board’s reasoning. Like Mid Transportation, this case preceded Antrim.

143When considering these cases as a group, there have been cases where claimants who suffered a permanent interference with access succeeded in a claim for injurious affection (Antrim, Loiselle, Larson) and cases where they did not (Mid Transportation). There is of course a distinction between what amounts to a complete removal of access (Antrim) and a change in access (Mid Transportation).

144Similarly, there have been cases where a claimant who suffered a temporary interference with access has been successful in its claim for injurious affection, as in Jordan, and cases where they have not, as occurred in Coady, and in part in Mid Transportation. The common theme in all of these cases—regardless of the permanent or temporary nature of the interference with access—is the impact it has on the claimant.

145In this case, there are two components to the Claimant’s submissions about access: vehicular access and pedestrian access. The Tribunal will consider these in turn.

146With respect to vehicular access, the Claimant’s business is located on a corner, with frontage and entrances on Ouellette and a side entrance on Tuscarora. All agree that the Claimant’s deliveries are made on Tuscarora. It was also Mr. Komsa’s evidence that many customers who choose to drive to the Bull & Barrel would park in the parking lot it leases on Tuscarora.

147The Tribunal heard no specific evidence as to how the lane closures on Ouellette would have impacted the Claimant, other than causing traffic to use detour routes to access Tuscarora. The Tribunal accepts, based on the evidence of Mr. Komsa, Mr. DeThomasis, and Ms. He, that Ouellette was closed to traffic from July 5 to August 13, 2018, and that during that time, customers accessing the Bull & Barrel by vehicle could not access Tuscarora from Ouellette. However, they could still access Tuscarora by other routes. It appears that the only time, based on evidence from Mr. Komsa, Mr. DeThomasis, and Ms. He, Tuscarora was not available was during watermain work in the fall of 2017. This precedes the time period in which the Claimant claims any losses.

148The Tribunal understands from Mr. Komsa that construction vehicles were sometimes parked on Tuscarora and that there was a “Road Closed – Local Traffic Only” sign on that street. There is no evidence before the Tribunal to indicate that this precluded access on Tuscarora. While the Tribunal heard vague references to the Bull & Barrel having to miss or reschedule deliveries due to the condition of Tuscarora, there was no evidence to substantiate any impact this would have had on the Claimant. Nor was there any indication that customers could not access the parking lot on Tuscarora should they have wished to do so.

149It is clear from Mr. Komsa’s evidence that pedestrian access is critical to the Bull & Barrel’s business. He described the typical weekend clientele as customers who would visit the establishment as one of a number of stops as they strolled through downtown Windsor. Conversely, on Wednesdays, he described the Bull & Barrel as a ‘destination’ for customers because of its promotions for that weeknight. In either case, he emphasized the importance of customers being able to conveniently walk to the business.

150Mr. Komsa described the confusion around pedestrian access during the duration of the Project. While his references seemed to have a blanket application to the Project period, the Tribunal finds that the material time period regarding pedestrian access started when the sidewalk was removed in front of the Bull & Barrel on September 6, 2018 until the new sidewalk was completed and opened for the weekend of October 26, 2018. This is also when events relating to the City’s Project and the Landlord’s work intertwine, which will be discussed later in this analysis.

151During the September to October 2018 period, some form of pedestrian access was always available for customers to access the Bull & Barrel. In fact, for some period of time, the east side walkway directly in front of the Bull & Barrel was still available to customers as a gravel walkway once the sidewalk was removed. The Claimant originally advanced the argument that this access was not available, as there was a fence and signage at the corner of Wyandotte and Ouellette, in front of the Shoppers Drug Mart, that would indicate to pedestrians that this access was closed. However, through the evidence of Mr. DeThomasis and Ms. He, and the Tribunal’s review of the relevant photograph, it became clear that there was an opening in the fence and the signage indicated that there was a “Dead End at Tuscarora”.

152While the Tribunal accepts that some pedestrians, at a cursory glance, might avoid using that access, it was open to pedestrians and there are photographs showing that pedestrians were using this access when it was available. The evidence did not clearly demonstrate the precise period of time in which the east side pedestrian access was unavailable, but the Tribunal accepts Ms. He’s testimony that it would have been while the Landlord completed its work, after which the City completed the sidewalk and opened it in late October. The Tribunal also accepts Ms. He’s testimony that the City ensured this access was available on weekends until this was no longer possible due to the Landlord’s work.

153Despite the evidence being unclear as to the precise time period in which pedestrians could not walk to the Bull & Barrel along the east side of Ouellette, it was certainly less than the approximately seven-week period from early September 2018 to late October 2018 in which the City and the Landlord worked on their respective projects. More importantly, it is undisputed that when pedestrian access was not available on the east side of Ouellette, there was a detour available so that pedestrians could walk along the west side of Ouellette to the walkway the City constructed—at the request of Mr. Komsa and the NCCE—across Ouellette to Tuscarora and into at least one of the Bull & Barrel’s entrances.

154In Mr. Komsa’s view, this access was not sufficient, as it was not always open and it was a lengthy six-minute detour for pedestrians, dressed for a night out, who would have to walk across a gravel path. The Tribunal heard no evidence to indicate that this walkway was closed at any material time, and certainly not at a time when pedestrians would have been precluded from accessing the business either on the east side of Ouellette or from other downtown streets to access Tuscarora.

155The Landlord’s work is a complicating factor in this analysis. Based on the evidence the Tribunal heard, it appears there is agreement that the Landlord’s work prolonged the interference with pedestrian access on the east side of Ouellette to the Bull & Barrel. The disagreement lies in whether the City should have allowed the Landlord to complete its work knowing that it would delay the City’s Project, and therefore, as the Claimant submits, would prolong the period of loss for the Bull & Barrel.

156There were, broadly, two components to the Landlord’s work: one planned, and one unplanned as some building disrepair was uncovered when the City began sidewalk removal. Part of that disrepair was then subject to a City-issued Order to Comply. Though the Claimant did not dispute the need for the Landlord to address structural repairs, it did argue that the City should not have allowed the Landlord to undertake its elevator shaft project knowing that it would delay the City’s Project and cause additional losses to the Claimant. The Tribunal makes two observations here.

157First, the discretionary decisions of City staff and officials carrying out their duties are not a matter within the Tribunal’s jurisdiction to consider. Accordingly, whether the Order to Comply should have been issued is not a matter before this Tribunal. The simple fact is that it was issued and the Landlord was required to complete the work set out in the Order.

158Second, given that the Tribunal does not have jurisdiction nor oversight of the decisions of municipal staff and officials considering applications for construction work, the Tribunal has difficulty with the Claimant’s argument about the elevator shaft work. At best, the Tribunal may consider the utility of the City’s conduct in carrying out its own Project without assessing the merits of the Landlord’s application to complete the elevator shaft. In this regard, the Tribunal finds Ms. He’s testimony compelling. Her initial reaction was that the Landlord’s project should not proceed, however, when she learned it would require digging into the City’s right-of-way she determined it was best for the Landlord’s work to proceed before the City’s Project was completed. Mr. Coates similarly testified that it would not make sense to destroy the City’s newly installed sidewalk and streetscaping in order for the Landlord to complete its work, then replace the sidewalk and streetscaping. From a cost and time perspective, the Tribunal agrees that such an approach would be unreasonable.

159Based on the evidence before the Tribunal, it is clear that the Landlord’s work—both the planned and unplanned—caused a prolonged inconvenience for pedestrian access to the Bull & Barrel.

160Although Ouellette was closed to vehicular traffic for 39 days from July to August of 2018, vehicles could access Tuscarora, where Bull & Barrel customers would typically park. Their only inconvenience was to pass a “Road Closed – Local Traffic Only” sign. Pedestrian access was restricted on the east side of Ouellette for an unspecified period of time, and was available at some point during the seven week period in which either the Landlord or City were working in front of the Bull & Barrel in September and October of 2018. Regardless, there was an alternative walkway, installed in part at the Claimant’s request, to access the building at Tuscarora, in addition to alternative downtown routes to access Tuscarora.

161In summary, there was different, and sometimes inconvenient, access to the Bull & Barrel for temporary and limited periods of time during the City’s Project. Inconvenient access is not the same as no access. Customers of the Bull & Barrel had multiple ways to access the business during the City’s Project. In fact, they did so. Mr. Komsa testified that the Wednesday destination nights were still well-attended and there are several mentions in the record of customers lining up to access the establishment. Clearly, customers who wished to access the business were able to find a way to do so. It may not have been the most convenient route of access, but reasonable access existed at all times during the Project, unlike in Jordan.

162The Claimant points to the duration of these events regarding access as being unreasonable, drawing a parallel between the 40-day period of impaired vehicular access in the Jordan case to interference of more than one year in this Claimant’s case. This is a leap the Tribunal cannot make. There is no parallel between a garden centre whose customers could not access the business during its peak season to a restaurant and bar whose customers could access the establishment, either in vehicles or as pedestrians, albeit sometimes by routes that were different from what they were accustomed.

ii. Dust, Noise, and Dirt

163Dust, noise, and dirt are also common complaints in claims for injurious affection. These annoyances have long been part of the courts’ discussion of the typical ‘give and take’ expected of everyone within the reasonableness analysis. The Antrim Court provides this guidance:

[40] Of course, not every substantial interference arising from a public work will be unreasonable. …

[41] It is clear, for example, that everyone must put up with a certain amount of temporary disruption caused by essential construction. Although not a case involving a public authority, the judgment of Sir Wilfrid Greene M.R. in Andreae v. Selfridge & Co., [1938] 1 Ch. 1, is instructive:

... when one is dealing with temporary operations, such as demolition and re-building, everybody has to put up with a certain amount of discomfort, because operations of that kind cannot be carried on at all without a certain amount of noise and a certain amount of dust. Therefore, the rule with regard to interference must be read subject to this qualification...that in respect of operations of this character, such as demolition and building, if they are reasonably carried on and all proper and reasonable steps are taken to ensure that no undue inconvenience is caused to the neighbours, whether from noise, dust, or other reasons, the neighbours must put up with it. [pp. 5-6]

[42] There are several important ideas in this quotation. One is that the duration of the interference is a relevant consideration. Admittedly, duration was not a relevant factor in this case because the injury was permanent. In cases where it is relevant however, it is helpful to consider that some sorts of temporary inconvenience are more obviously part of the normal “give and take” than are more prolonged interferences. While temporary interferences may certainly support a claim in nuisance in some circumstances, interferences that persist for a prolonged period of time will be more likely to attract a remedy: see, in the context of public nuisance, Wildtree Hotels Ltd. v. Harrow London Borough Council, [2001] 2 A.C. 1 (H.L.).

164As the Court earlier noted in St. Pierre, “[a]ll highway construction will cause disruption. Sometimes it will damage property, sometimes it will enhance its value. … Highways are necessary: they cause disruption.” Subsequently, the Antrim Court cautioned that St. Pierre should not be read so that the necessity of a project prevails over the severity of interference. With that caution in mind, and considering the Court’s discussion of construction inconveniences in Antrim, the Tribunal turns to the inconveniences at alleged in this case.

165There is no question that there was dust, noise, and dirt involved in the Project, as there is in any construction project. Ms. He’s testimony was reminiscent of the above words from the St. Pierre Court: when it was put to her in cross-examination that the project caused ‘significant disruption’ she succinctly answered: “It is construction. There is normal disturbance and we try to minimize”.

166The Tribunal accepts Mr. Komsa’s evidence that dust was a common condition on the patio as the Project work was carried out on Ouellette and that this would not have been appealing to patio customers. Nor would loud construction noise, bearing in mind the busy downtown location of this business. The Tribunal also accepts Mr. DeThomasis’ evidence that Lepera was conscious of dust throughout the Project and would use water to keep dust levels down.

167Mr. Komsa also testified as to the presence of construction equipment, and broken sidewalk and curbs following the 2017 components of the Project. He indicated that the area looked like a construction zone and that this kept customers from visiting the Bull & Barrel. While there was construction equipment and fencing, no other witness testified as to the presence of broken sidewalk or curbs, and the photographs in evidence do not show such a condition.

168It is also important to note that construction for the Project took place during daytime, weekday hours. As Mr. Komsa testified, the majority of the Bull & Barrel’s business is from evenings and weekends and relates to the indoor establishment. He indicated that there is some lunch business during the week. The Tribunal accepts that daytime, weekday construction could deter would-be patio customers. However, given that the majority of business comes from evenings and weekends, and that there was no evidence regarding patio sales, the Tribunal cannot find that dirt, dust, and noise caused severe harm to the Claimant’s business.

169On the whole, the Tribunal heard no evidence to indicate that dust, noise, and dirt exceeded what is typically expected in a construction project, nor that this caused severe interference with the Claimant’s business. On that point, the Tribunal will turn to consider the claimed business losses.

iii. Business Losses

170The extent of losses suffered by a claimant can point to the severity of the harm or interference. Sometimes this consideration appears within the analysis of the severity of the harm itself, often in cases where there is no debate about the quantum of damages. Decisions of the Tribunal and its predecessors sometimes reserve the discussion of damages or business losses until a determination has been made as to whether nuisance exists. In this case, because the Claimant advanced its claimed business losses as part of its submissions on the severity of the harm, the Tribunal will adopt the same approach.

171As noted earlier, the Claimant, in its Notice of Arbitration and Statement of Claim, originally claimed a sum of $566,610 in damages resulting from the construction of the Project. Mr. Bondy advised of a significantly lower sum in his opening submissions, approximately $260,000, as the Claimant had chosen not to advance a claim regarding its patio. As part of closing submissions, Mr. Bondy provided a helpful schedule specifying the damages in the amount of $273,845.50, representing an average of the low and high calculations prepared by Mr. Tracey. The Tribunal references all of these figures for context only and draws no inference from the change in figures; it is not unusual for the precise quantum of damages to change as a Claimant prepares for its compensation hearing.

172Also as noted earlier, the Tribunal qualified Mr. Tracey, retained by the Claimant, to provide opinion evidence in the area of business valuation. The City retained Mr. Tautrims, qualified by the Tribunal to provide opinion evidence in the area of business valuation and accounting. Mr. Tautrims prepared a report, at the request of the City, responding to Mr. Tracey’s original valuation report filed in February 2020. His report comments on the Tracey report and does not contain a conclusion as to the quantum of business losses. Mr. Tracey advised the Tribunal that he made some changes to his report following his review of Mr. Tautrims’ report.

173Mr. Bondy submitted that the Tribunal should give little weight to Mr. Tautrims’ evidence because he did not prepare his own valuation report and critique evidence is of no value to the Tribunal. For this proposition, Mr. Bondy relies on a decision of the Ontario Court of Appeal in a family law case involving a custody dispute.³ The Court in that case was referring to an expert who had been retained to review the report of another expert who had evaluated the child in question. The Court found that the critique evidence had little probative value and added expense and risks to elevating animosity between the parties. The Tribunal does not find this case to be of assistance in the context of an expropriation proceeding before an administrative tribunal.

174It is common in expropriation matters for a respondent’s expert witness to critique the evidence put forward by a claimant’s expert, given that a claimant bears the burden of proving its damages for business loss. The Tribunal finds no basis for the Claimant’s submissions that Mr. Tautrims went beyond the impartial role of an expert witness to serve as the City’s “advocate and ‘hired gun’”.

175There are critical flaws in Mr. Tracey’s valuation, as identified by Mr. Tautrims, that would make it difficult for the Tribunal to rely on his valuation as an accurate calculation of quantum of damages. The Tribunal agrees that the Claimant appears to have suffered a loss during the Project. However, it is impossible to identify the correct amount of that loss for the following reasons.

176First, the loss period does not match periods of time in which the City was actively carrying out Project work that could have affected the business. There was no construction during January and February 2018. Other than some construction equipment left onsite from the fall, there was nothing that would have deterred customers. There was also a decline in sales in January 2018 and February 2018 as compared to prior years, though no construction was occurring during this time period. The Bull & Barrel had record sales in March 2018, which Mr. Komsa attributes to pre-arranged events that were under contract. Mr. Tracey omits these events and related March sales from his loss calculations, as he considered them an anomaly.

177Then, in May 2018, when there was construction happening on Ouellette (and not directly in front of the business), the sales show a normal sales month, in fact better than 2016 sales for the same month. Mr. Komsa noted that patio sales are of course weather dependent. No analysis of weather and its correlation to patio sales in 2018, nor any prior years, was presented to the Tribunal. Although the calendar log makes general references to good weather in May, it also paints a picture of poor sales for May 2018, which contradicts the sales numbers presented. This, combined with the fact that the log was prepared by multiple staff who did not testify at the hearing, leads the Tribunal to question its reliability.

178The Tribunal agrees, based on the chronology of events that June or July 2018 is the more appropriate starting point for any business loss. As discussed earlier, the Landlord’s work complicated the City’s Project timeline as of September 2018.

179Second, there is an inability—acknowledged by both Mr. Tracey and Mr. Komsa—to differentiate patio sales from indoor sales. This is particularly problematic as Mr. Komsa testified that the majority of business is from the indoor establishment, and that the Wednesday destination nights were still well-attended. The Tribunal agrees that construction on Ouellette—with noise and dust—may have deterred would-be patio patrons. However, it is impossible to connect the dots to determine the extent to which patio business was impacted. The Tribunal also notes that the business closed on Mondays in August and then closed its lunch business. Again, the Tribunal was not presented with any numbers to demonstrate how much of the overall business came from Monday and lunch business.

180Third, with respect to advertising, Mr. Tracey included an expense of $12,980 for the Claimant to mitigate its business losses through advertising and promotion. However, as Mr. Tautrims points out, these expenses appear to occur in December 2018, after the Project was completed, and there is no invoice support for one-third of these expenses. It is unclear to the Tribunal how advertising and promotion expenses spent after the Project would assist in mitigating business losses incurred during the Project. Mr. Komsa testified that it would have been throwing money into the wind if the Claimant advertised during the Project; in his opinion, no one wanted to visit the establishment during construction.

181Fourth, there were other factors outside of the Project that may have impacted the business. Notably, the business lost its head chef at some point during the Project. Mr. Komsa could not identify the precise date when this happened and it is also not clear from Mr. Tracey’s analysis. Also, the minimum wage increased at the start of 2018, which corresponded with a price increase—this is true of many businesses during that time. The evidence the Tribunal heard about these circumstances outside the Project was speculative, though, when coupled with the losses showing in January and February when no construction occurred, it raises a question as to whether patrons were choosing not to visit this business for other reasons aside from the construction.

182Finally, there are gaps in Mr. Tracey’s analysis that make it difficult for the Tribunal to rely on his quantification of business damages. Most problematic was his decision to not include significant sales in March 2018 arising from special events held at the Bull & Barrel. His rationale was that these sales were an anomaly, and that regular March sales outside of these events showed a decline. This seems to be an arbitrary adjustment, in the Tribunal’s view, and it leads the Tribunal to question the accuracy of Mr. Tracey’s quantification of damages. For instance, other months with special events do not appear to have been treated similarly.

183The Tribunal does acknowledge that Mr. Tracey made some adjustments after having reviewed Mr. Tautrims’ report, in particular to his gross margin percentage, which he adjusted down. However, Mr. Tracey did not seem overly concerned with trends and fluctuations in the Claimant’s business prior to the claimed loss period. As Mr. Tautrims points out, the Claimant’s monthly decline rates were well within the range of declines experienced when comparing the same months in previous years, that is, until June 2018. One reason for fluctuation, as explained by Mr. Komsa, is the weather-dependant nature of the patio. Again, there was no analysis of weather to demonstrate what sales could have been without the Project, nor is there an ability to differentiate indoor and outdoor sales. It was also Mr. Komsa’s evidence that the majority of business is from the indoor establishment. The Tribunal agrees that if the Claimant’s losses were caused by the Project, the more appropriate starting point for the loss period is June 2018.

184The Tribunal also notes Mr. Tautrims’ observation that there continued to be sales decreases after the Project completed. If the Project was the cause of business declining, presumably there would have been an increase once the Project completed.

185In summary, the Claimant’s presentation of its business losses raises more questions than it provides answers. For the purpose of assessing the severity of the harm on the Claimant, the Tribunal can assume that the business experienced some loss during the Project, starting in June 2018. As discussed previously, the Landlord’s work was a complicating factor that makes it impossible for the Tribunal to find that losses incurred after August 2018 were caused by the City’s Project alone. It is also problematic that the Claimant’s Sidewalk Café Permit indicated that it would not be permitted to continue the patio during the summer months due to the Project. In reality, the patio was not removed until the third week of August 2018.

186Notwithstanding the many questions about the quantum of damages and causation, for the purpose of Tribunal’s analysis of severity, it can accept that the business experienced losses beginning in June 2018.

b. The Character of the Neighbourhood

187When considering the character of the neighbourhood, or as it was put in Mandrake, the nature of the locality, the analysis relates to what a claimant in this area is entitled to expect on a daily basis. In Antrim, the Court explains that consideration of this factor “recognizes that what is reasonable must be viewed with reference to where the interference takes place and what is typical of that location” (para. 88). This sometimes relates to the expectations in a commercial area versus a residential area. In that regard, the Court of Appeal’s description in Mandrake, at paragraphs 35-36, is of assistance:

[35] Where the locality is essentially commercial rather than residential, different considerations arise in weighing the four factors to determine whether there is a nuisance. The point is explained by Morden J. in Walker v. Pioneer Construction Co. (1967) Ltd. (1975), 1975 CanLII 481 (ON SC), 56 D.LR. (3d) 677 at p. 691, 8 O.R. (2d) 35 (H.C.J.):

Exercising the best judgment that I can I find that the general noise level to which the plaintiffs are subjected by Pioneer's operations, throughout the day, are not such that a reasonable person, living where the plaintiffs do, can reasonably complain. The area is by no means devoted exclusively to residential uses, thus engendering a just expectation of a certain level of peace and quiet. It is a mixed-use area where a residential owner has to put up with significantly more intrusion on his sensibilities than he would in an exclusively residential neighbourhood.

[36] I think it must follow, similarly, that people operating businesses in a locality which is essentially a commercial area are required to put up with a considerably greater intrusion on their sensibilities than do people living in a locality which is residentially oriented or substantially residential.

188The Court in Antrim offered this additional commentary regarding the character of the area:

[43] Another important idea is that the traditional consideration relating to the character of the neighbourhood may be highly relevant in the overall balancing. This point is particularly relevant in cases where a claim is brought against a public authority. As Michael Senzilet has written,

With the urban environments of today, people live much closer together and much closer to public corridors than they did 100 years ago ... In today’s urban fabric, buildings are closer together, closer to roads, building lots are smaller, and there are far more public projects that are both possible and required. Surely, the choice of living in the urban core, in a suburb, or in the countryside exposes one to differences and one’s choice must be made taking into account those differences.

(“Compensation for Injurious Affection Where No Land Is Taken”, unpublished LL.M. thesis, University of Ottawa (1987), at p. 73)

189In considering the nature of the locality in Mandrake, the Court found that the plaintiff was located in an essentially commercial area and rejected the plaintiff’s contention that they would be entitled to the degree of tranquility and peace found in a private residence.

190The character of the area in Jordan provided a unique circumstance and stands in contrast to Mandrake. In that case, the Tribunal found that the area was largely residential with the claimant’s greenhouse being an outlier as the only business in the project area.

191In this case, the Bull & Barrel is located on Ouellette, a major arterial road that runs north-south through the City’s Central Downtown Business District. As the main street in downtown Windsor it experiences normally heavy traffic volumes—both for vehicles and pedestrians. There is bustling nightlife in downtown Windsor, as Mr. Komsa described the typical customer visiting many downtown establishments in a given weekend evening, including the Bull & Barrel. There could be no expectation of peace and tranquility in this downtown area.

192Mr. Bondy submitted that, as the only restaurant and bar on this block of Ouellette, the Bull & Barrel is one of the only businesses on the block that relies heavily on walk-in pedestrian customers and downtown bar-hoppers. It is unclear to the Tribunal how this submission assists the Claimant with respect to this factor in the balancing exercise.

193The character of this downtown area is such that noise would not be unusual. There is an expectation of noise and traffic in this area and this is something the Tribunal must consider in the reasonable analysis.

c. The Sensitivity of the Claimant

194It is important to consider whether a claimant has an abnormal sensitivity to the interference, as there are nuisance cases where such a sensitivity had the effect of negating the claim. When discussing these cases in Mandrake, the Court of Appeal offered this guidance: “abnormal sensitivity should be weighed as an important, if not necessarily determinative, factor in deciding whether or not the conduct of a defendant is in law a nuisance to a particular plaintiff” (para. 44).

195The nuisance claim in Mandrake was brought by a consulting business located in what was originally a residence on Bedford Road, near the St. George subway station in Toronto. The plaintiff claimed that the subway trains caused noise and vibrations causing a nuisance. The trial judge found there was a nuisance and the Toronto Transit Commission appealed to the Court of the Appeal. When considering the sensitivity of the plaintiff, the Court of Appeal noted that while the evidence demonstrated the plaintiff’s building, due to its age and method of construction, was more susceptible to noise and vibrations than other buildings in the area, the trial judge had erred in failing to take this abnormal sensitivity into account.

196In Jordan, Member Taylor found that a greenhouse that relied solely on vehicular access by customers to its business was at a peak for sensitivity when the municipality undertook its project during the height of the business’s spring season. The fact that the municipality was aware of this sensitivity and unnecessarily selected that spring time period for construction weighed in the Tribunal’s finding of nuisance and awarding the claimant business losses of $115,000.

197With respect to this Claimant’s sensitivity, Mr. Bondy submitted that unlike many of the other businesses within the construction area, the Claimants customers had the ability to choose a different restaurant or bar outside the construction area and that this made the Claimant more sensitive to the construction than other businesses. The Tribunal notes that if the Claimant was more sensitive, it is a factor that may not weigh in its favour.

198However, it is unclear based on the evidence and submissions whether the Claimant has an abnormal sensitivity. Arguably, if the Claimant relied on its patio for a significant portion of its sales, such a sensitivity to the construction may exist. Mr. Komsa testified that the majority of the Bull & Barrel’s business was from the interior restaurant. He indicated that while the patio certainly helped sales in the summer, the majority of evening business was on the inside of the restaurant. Both he and Mr. Tracey testified to the fact that the business does not distinguish between patio business and inside sales.

199There is not sufficient evidence to confirm whether the Claimant was more sensitive to the construction than other businesses in the area. There is certainly no evidence to establish that this Claimant was more sensitive than other businesses to construction and that the City acted knowing of that sensitivity, as was the case in Jordan. Accordingly, this factor does not weigh in the Tribunal’s overall analysis of reasonableness.

d. The Utility of the City’s Conduct

200The Courts and Tribunal have long recognized the public utility and benefit of public works such as highway construction or reconstruction. This does not mean, as explained by the Court in Antrim, that in the balancing exercise such a public benefit is equally weighted with the severity of the harm to a claimant. If it was, this would undermine the purpose of providing a route for compensation under the Act (para. 30).

201As the Court describes, the utility of the conduct relates to the purpose of the project. This is distinct from the nature of the conduct, where the focus is on how that purpose is carried out (para. 28). The Court succinctly summarizes this point at paragraph 28:

Generally, the focus in nuisance is on whether the interference suffered by the claimant is unreasonable, not on whether the nature of the defendant’s conduct is unreasonable. … The focus of the reasonableness analysis in private nuisance is on the character and extent of the interference with the claimant’s land; the burden on the claimant is to show that the interference is substantial and unreasonable, not to show that the defendant’s use of its own land is unreasonable. [Emphasis in original].

202The Court goes on to explain that the nature of the defendant’s conduct is not an irrelevant consideration, and that where the conduct is either malicious or careless it will weigh as a significant factor in the reasonableness analysis. Conversely, if an authority establishes that its conduct was reasonable, that can be a relevant consideration, with the caveat that its reasonable conduct should not be taken as a complete answer to the question of reasonableness. The Court articulates this critical caution at paragraph 30:

…the utility of the defendant’s conduct is especially significant in claims against public authorities. Even where a public authority is involved, however, the utility of its conduct is always considered in light of the other relevant factors in the reasonableness analysis; it is not, by itself, an answer to the reasonableness inquiry. Moreover, in the reasonableness analysis, the severity of the harm and the public utility of the impugned activity are not equally weighted considerations. If they were, an important public purpose would always override even very significant harm caused by carrying it out. As the editors of Fleming’s The Law of Torts put it, the utility consideration “must not be pushed too far... [A] defendant cannot simply justify his infliction of great harm upon the plaintiff by urging that a greater benefit to the public at large has accrued from his conduct”: s. 21.110. The words of McIntyre J.A. in Royal Anne Hotel are apposite:

There is no reason why a disproportionate share of the cost of such a beneficial service should be visited upon one member of the community by leaving him uncompensated for damage caused by the existence of that which benefits the community at large. [p. 761]

Following its review of a number of cases often cited in support of public utility, including St. Pierre and Mandrake, the Court offers this guidance at paragraphs 39-40:

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. That in my view is at the heart of the balancing exercise involved in assessing the reasonableness of an interference in light of the utility of the public authority’s conduct.

Of course, not every substantial interference arising from a public work will be unreasonable. The reasonableness analysis should favour the public authority where the harm to property interests, considered in light of its severity, the nature of the neighbourhood, its duration, the sensitivity of the plaintiff and other relevant factors, 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. This outcome is particularly appropriate where the public authority has made all reasonable efforts to reduce the impact of its works on neighbouring properties.

203Accordingly, the Tribunal must consider the City’s conduct in carrying out the Project in the context of the other factors that are relevant to the reasonableness analysis in this case.

204Turning to this case, there is no dispute that the City’s Project served an important public purpose. The Claimant recognizes the benefit of the completed Project, which resulted in updated, attractive streetscaping on Ouellette, as well as the introduction of on-street parking.

205The Claimant made no allegations of malicious or careless conduct by the City. In fact, the Claimant said very little about the City’s conduct during its closing submissions, other than echoing the Supreme Court of Canada’s comments in Antrim that the public benefit of the Project should not simply be put in balance with the Claimant’s interest. The Tribunal agrees, given the clear direction on this point in Antrim. However, and also in line with Antrim, the Tribunal must consider the nature of the City’s conduct in carrying out the Project.

206There is a detailed chronology related to this Project, and the Tribunal heard extensive evidence about Project events during the hearing. In particular, Ms. He provided credible and unwavering testimony that was undisturbed on cross-examination. Mr. DeThomasis, who was on site throughout the Project, provided testimony that was consistent with Ms. He’s, though his recall of certain details relating to pedestrian access on the east side of Ouellette was less precise than that of Ms. He. Overall, their testimony was of assistance to the Tribunal and was generally not in conflict with Mr. Komsa’s testimony. While the Tribunal found Mr. Komsa to be a credible witness, much of his testimony about the Project consisted of general statements that reflected his negative experience with the Project. His testimony lacked precision both regarding key events during the Project and the claimed business losses.

207When the chronology and related evidence is reviewed, the general theme is that the City acted reasonably throughout the time it carried out the Project. Without repeating the chronology, the Tribunal will offer its findings with reference to the key events.

208First, the evidence and the record demonstrate that the City was proactive in providing notice of key events both before and during the Project as they unfolded. In addition to its officially issued notices of broad application throughout the Project area, Ms. He was personally in frequent communication with Mr. Komsa. Ms. He was proactive in alerting Mr. Komsa to developments in the Project. While he complained that she did not always provide him with a ‘heads up’, her responses to his queries were prompt, consistent, and responsive to his concerns. This is notable, given that the Project area concerns a large area of the downtown core with many businesses. This level of communication is very different from the Jordan case, where the Tribunal found notice and communication with that claimant to be lacking, as the Town had met only minimum notice standards and made no effort to meet with the claimant prior to its project. This leads to the Tribunal’s second finding.

209Second, while the Project area relates to a large section of the downtown core, involving many businesses, the Bull & Barrel appeared to be a central focus for the City. This is reflected in the regular construction meeting minutes. The Bull & Barrel is a regular agenda item in these meetings with extensive discussion, as described by both Ms. He and Mr. DeThomasis, as to how the Project could affect the Bull & Barrel, with changes sometimes made to accommodate that particular business. The City made substantial efforts to maximize the Bull & Barrel’s patio season; this was a frequent mention in the meeting minutes, throughout the record and throughout the hearing. Rarely was another business mentioned or discussed in the City’s construction meetings.

210Third, the City’s Project was actually running ahead of schedule by June 2018. This meant that work could have started earlier in front of the Bull & Barrel; however, the City was adamant that the patio should not be affected until at least July 10, 2018, and so it instructed Lepera to work elsewhere in the Project area. Again, the City did what it could to accommodate the needs of the Bull & Barrel. It did so again by constructing a walkway, at Mr. Komsa’s request, so that pedestrians could access the building by crossing Ouellette at Tuscarora.

211Finally, the only delay the Tribunal heard of within the City’s Project related to the re-pouring of concrete for the bus bay and a revision of drawings that was estimated to cause an overall delay of one to two weeks. The Tribunal heard nothing in the City’s conduct that was unreasonable here, in the context of a largescale streetscaping Project for the main artery of its downtown core. Delays are common in construction projects for a variety of reasons outside of an authority’s control.

212The City’s Project was substantially completed two months later than planned. However, the Tribunal finds, based on all of the evidence it heard and its review of the record, that the significant delay to its Project began when the City discovered the disrepair on the Landlord’s building. There is no way that the City could have known that the Landlord’s building would require repair due to an unsafe condition. This was discovered in early September 2018 when the City removed the sidewalk in front of the building.

213The Tribunal finds that the City was quite reasonable in coordinating efforts among its contractor, Lepera, and the Landlord’s contractor, Petretta, for both the work the Landlord planned and did not anticipate (the Order to Comply). Conversely, it would have been unreasonable for the City to proceed with its own Project, requiring the Landlord to complete its work at a later date, at which time the City would have to remove its new streetscaping and then replace it once the Landlord completed its work. The Claimant’s suggestion that the City should have done something other than coordinate all of the work that needed to happen in its own right-of-way is untenable.

214In summary, the Tribunal finds that the City’s conduct in carrying out its Project was reasonable at all material times. The City took a responsible and proactive approach to its Project, especially when faced with works being completed in its right-of-way by other contractors. In addition to the Landlord’s work, the City also coordinated with the Claimant’s contractor for the installation of footings for the Bull & Barrel’s patio.

215The Tribunal is reminded of Ms. He’s testimony of a time toward the end of the Project, where she assisted in coordinating an event so that a tourist bus could stop in front of the Bull & Barrel and patrons could walk a red carpet into the establishment. This was at a time when there was still construction fencing and material on Ouellette. Though Ms. He initially expressed a safety concern about the bus stopping at this spot on Ouellette, she ultimately worked with the Bull & Barrel to make it happen. This vignette is an apt summary of the City’s conduct throughout the Project. The City very nearly rolled out a red carpet for this Claimant during the course of the Project.

216The Tribunal’s findings regarding the City’s conduct and utility of the Project are significant in the analysis of reasonableness. However, they are to be carefully balanced against the other factors in the analysis to determine whether the harm is unreasonable for the Claimant to bear alone. Accordingly, the above findings should not be taken as a consideration equal to the severity of the harm to the Claimant.

The Tribunal’s Conclusions on Nuisance

217There is no doubt that the Project was a significant one that caused disruption within the Project area. While the interference was substantial, the question is whether it would be unreasonable for the Claimant to bear the interference without compensation in all of the circumstances. The Tribunal finds it is not unreasonable in this case. With respect to the severity of the harm, access is at the core of the dispute. At all material times, there was access to the Bull & Barrel. It may not have been the preferred or the most convenient access, but it existed at all times. Customers could access the business by vehicle or as pedestrians, and they in fact did so throughout the Project. While there appears to be some business loss during the Project period, the Claimant has not demonstrated that these losses were as a result of the Project, nor has it quantified its damages with accuracy or reliability.

218It must be remembered that this Project took place on the City’s main downtown street. Even without construction, the character of this area is not that of a tranquil residential area that is free of noise or disturbance. There are many businesses in this area that would have experienced the same irritations of construction during the Project period.

219The Tribunal is unable to find an abnormal sensitivity with the Claimant. While the patio is arguably a sensitivity, the evidence simply does not demonstrate that fact. Even if it were, the situation is different from Jordan, where the municipality knew of the claimant’s sensitivity and proceeded with an arbitrary project timeline despite that sensitivity. In this case, the City made frequent efforts to accommodate the Bull & Barrel by extending its patio season as long as possible, even when it could have completed its Project ahead of time. The City’s conduct throughout the Project was reasonable and demonstrates that it made every effort to accommodate this Claimant.

220Weighing all of these considerations, the Tribunal finds that it is not unreasonable for the Claimant to bear the interference that may have been caused by the City’s Project without compensation. Therefore, the Tribunal finds that there is no actionable nuisance here.

CONCLUSION

221No doubt the Bull & Barrel experienced an interference during the City’s Project. Having regard to all of the circumstances, there is no evidence to demonstrate that the interference was unreasonable. It was an unfortunate turn of events that the Claimant’s Landlord had significant work to complete during the Project period, including addressing an unsafe building condition through the Order to Comply. The City was reasonable in coordinating these works with its own Project when the right-of-way would already be removed for the streetscaping. The City’s coordination of these works resulted in its own Project being delayed and the City having to pay a significant change order amount to its contractor.

222Having found that there is no actionable nuisance in this case, the Tribunal must dismiss the claim in its entirety. The Tribunal notes that the City requested its costs in its Reply to the Claim. Should the City wish to proceed with a claim for costs, it must do so in accordance with the Tribunal’s Rules of Practice and Procedure.

ORDER

223The Tribunal Orders that the Claim is dismissed.

224Should the City intend to proceed with a claim for costs, its request shall be made in writing within 30 days of the issuance of this Decision in accordance with the Tribunal’s Rules of Practice and Procedure.

“S. Jacobs”

S. JACOBS

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

Footnotes

1. 1The Claim was filed with and the hearing was convened by the Local Planning Appeal Tribunal. As of June 1, 2021, prior to this Decision being issued, the Local Planning Appeal Tribunal was amalgamated into the Ontario Land Tribunal. All references to ‘Tribunal’ in this decision should be read to include the Ontario Land Tribunal and its predecessors, as appropriate.
2. 2See, for example, two cases preceding Antrim where the permanent nature of the interference resulted in a decrease in property value and found to be actionable nuisance: The Queen v. Loiselle (1962), 1962 CanLII 72 (SCC), 35 D.L.R. (2d) 274, [1962] S.C.R. 624 (Loiselle), and City of Windsor v. Larson et al. (1980), 1980 CanLII 1573 (ON HCJ), 20 L.C.R. 344 114 D.L.R (3d) 477 (Larson).
3. 3M. v. F., 2015 ONCA 277.