Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 07, 2022
CASE NO(S).: OLT-21-001577
PROCEEDING COMMENCED UNDER subsection 6(2) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Tenants: 1501270 Ontario Limited and 1341026 Ontario Inc.
Expropriating Authority: City of Markham
Property Address/Description: 55 Torbay Road, Markham
Municipality: City of Markham
OLT Case No.: OLT-21-001577
OLT Lead Case No.: OLT-21-001577
OLT Case Name: 1501270 Ontario Limited v. Markham (City)
Heard: March 11, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| City of Markham | D. Lurie |
| 1341026 Ontario Inc. (Racetronix) | A. Sinclair |
REPORT DELIVERED BY D.S. COLBOURNE AND ORDER OF THE TRIBUNAL
1This is the Report of a Hearing of Necessity held under s. 7 of the Expropriations Act, R.S.O. 1990, c. E.26 as amended (the “Act”). Informal inquiries are held in order to determine whether the proposed taking by the expropriating authority of an owner’s land is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority” as the Act states. The courts have interpreted this test to be whether the proposed taking is “reasonably defensible”.
2The numbered company, which requested this Hearing (“Requestor”), known as Racetronix, is a tenant at 55 Torbay Road (“55”). The City of Markham (“City”) served a Notice of Intention to expropriate on several owners and tenants of properties on December 20, 2021. This property is but one of four, which are proposed to be expropriated, all of which will be part of the construction of a central municipal flood storage facility, a vital element of the City’s flood reduction strategy. The City has the title to all four properties – 55, 85, 115 and 135 Torbay Road. After March 2022, it is hoped that all structures on the other properties will either be demolished or vacant. The Racetronix lease at 55 extends until November 2023.
3Counsel for Racetronix described the transition to a new location as physically complicated, requiring considerable time to plan and carry out. They are apparently underway with an alternative location.
4Mr. Muir, Storm Water Manager for the City, described the purpose of this facility as part of the overall strategy to provide improvements to stormwater management. This includes (along the Don Mills Channel):
- a central municipal flood storage facility with a storage volume of 37,000 cubic metres, and integrated water quality treatment for the storm sewer system discharging through the area;
- replacing the existing corrugated steel pipe culverts at Steelcase Road East, Woodbine Avenue, Denison Street and Steelcase Road East;
- implementing a flood proofing and education program that can be expanded to other flood-vulnerable areas in the City; and,
- implementing the Don Mills Channel Flood Reduction Study dated July 2018, in respect of the project.
5There was no disagreement that there is annual flooding of the properties and of Woodbine Avenue in this area, and that 55 is one of the most flood prone properties. In 2014, there was a devastating flood of 55 and there have been calls from the property for certain subsequent events. The existing system according to Mr. Muir, cannot handle the flooding. Tab 13 of the Document Book, Exhibit 1, is a Study by the IBI Group prepared for the Toronto and Region Conservation Authority (“TRCA”) in 2019. This ranked flood vulnerable areas, and this area involving this property as the fourth highest in the whole of the Region of York.
6There was some back and forth on the exact timing of parts of the project, and of the funding necessary to complete the project in total. Infrastructure Canada has approved up to 40% of three aspects of the project.
7As Mr. Muir advised, the overall project is not yet designed in detail, and it will be another year for the complete design and to break the ground. Based on the aforementioned IBI Study, a concept design of the central municipal flood storage facility was based on the acquisition of the four properties.
8Tab 12 of the Document Book is a report prepared by TMIG – Don Mills Channel Flood Reduction Study. The area studied is set out in Figure ES-1, and was undertaken to “determine the most appropriate means of reducing flooding along the Don Mills Channel”. This study focuses on this area, and selects as the alternative what is set out above as the parts of the project. This is one of eight alternatives assessed in the study.
9The evaluation summary is set out on page iv of the Executive Summary.
10The evidence, on behalf of the Municipality, is that there may be some delay to parts of the project, but that they would like to have the operations moved and structures removed to limit continuing liability.
It is recommended that the central municipal flood storage facility be constructed first as it can be implemented relatively quickly and achieves over half of the total reduction in flood damages associated with the combined alternative.
11The Requestor did not suggest an alternative, nor was the need for the project sufficiently challenged. They simply wished the expropriation to be rejected, as the project is not completely designed nor completely funded, and any move to other facilities is difficult and costly.
12It is clear to me that this area flooding is a major problem for the Municipality, and the situation needs to be addressed. The Requestor did not disagree with the flooding nor its extent.
13In the Tribunal’s view of this matter, it is one of tenant relocation as against serious liability issues for the City. Frankly, the reality of flooding and the liability arising therefrom supports the necessity here. There have been serious steps taken already, since four properties have been taken and demolition is underway on at least two of them. There is a need to limit liability. This storage facility is the major facility in this proposal, and on its own will make a significant reduction in flooding.
14The Parties had jointly filed a Document Book, made Exhibit 1 to this Hearing of Necessity. In the Tribunal’s opinion, this is unnecessary for this type of hearing of inquiry. It would be of greater assistance to merely follow the Act’s requirement to serve on the owner a Notice of Grounds as was also done. In these matters, it is unnecessary to attempt to reach an agreed Issues List. Such a Notice of Grounds is a statutory requirement, under s. 7(4) of the Act. The Grounds provided by the Authority are explicit reasons for the proposed taking, and not merely an agreed list of issues to be addressed at the hearing. Effectively, they guide the evidence for both Parties on a more concrete manner, and are a better guide for the Member hearing the matter.
15After considering all of the evidence and arguments, the Tribunal concludes that the proposal meets the test in the Act and the summation of it as set out by the courts. The test in s. 7(5) of the Act is whether the proposed taking is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority”. Court decisions such as Parkin v. The Queen in right of Ontario et al, 1978 CanLII 1254 (ON CA), 19 O.R. (2d) 473, 14 L.C.R.327 determined that the test that the inquiry officer must apply can be expressed as to whether the proposal is “reasonably defensible in the achievement of the City’s objectives”.
16For the reasons given above, the Tribunal finds that the taking of 55 Torbay Road is reasonably defensible in the achievement of the City’s objectives of providing improvements to stormwater management infrastructure along the Don Mills Channel.
17The Requestor’s counsel asked for costs in the order of $1,500. This amount is somewhat different from that formerly asked by the Hearing Officers in these matters. This Tribunal has the discretion to increase the previously available $200 if this power has been prescribed [s. 7(8)], but there has been no such prescription. Cost in these matters do not follow the results, nor are they similar in any way to this Tribunal’s usual considerations under its other jurisdictions.
18In this matter, based on the submissions by the Requestor, the Tribunal is not convinced that the Hearing should have been requested. This is a matter of relocation and reaching an agreement on relocation. There is certainly not a substantive consideration of the need for the project or the expropriation. The Tribunal rejects the request for costs.
“D. S. Colbourne”
D.S. COLBOURNE VICE-CHAIR
Ontario Land Tribunal Website: 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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.