Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 30, 2022
CASE NO(S).: OLT-22-002537
PROCEEDING COMMENCED UNDER subsection 6(2) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Owner: Kenneth Arney
Expropriating Authority: Township of Central Frontenac
Property Address/Description: Part of Lot 26, Concession 7
Municipality: Township of Central Frontenac
OLT Case No.: OLT-22-002537
OLT Lead Case No.: OLT-22-002537
OLT Case Name: Arney v. Central Frontenac (Township)
Heard: June 17, 2022 by Video Hearing
APPEARANCES:
Parties Township of South Frontenac Kenneth Arney
Counsel T. Fleming S. Putnam (did not appear)
REPORT OF THE TRIBUNAL DELIVERED BY D.S. COLBOURNE AND G. BURTON
1This is the Report of a Hearing of Necessity held under s. 7 of the Expropriations Act, R.S.O. 1990, Chapter 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 Requestor, Kenneth Arney, did not appear at the Hearing. The Tribunal’s Case Coordinator had connection with him throughout the prior week. Mr. Arney had advised that he has some connection problems and was not sure he could connect. The Case Coordinator advised of options both technical and procedural, but did not hear positively in any respect. Counsel for the expropriating authority advised that they had not heard from the Requestor.
3The Tribunal considers that the Requestor has constructively abandoned the request, and provides its finding only for the record.
4The issue in this matter is set out in a letter to Mr. Arney from the Clerk Administrator of the Township of Central Frontenac (“Township”) dated June 25, 2019.
The survey sketch as prepared by Hopkins Chitty (Tom MacDonald, OLS) shows that some private lands were filled during the culvert replacement over Dead Creek. While the creek itself is navigable, we recognize the shoreline next to the creek is privately owned by you.
The addition of the culvert of this size was necessary for the maintenance and integrity of our roads infrastructure, and was supervised by our consulting engineer. In the completion of the contract, it appears the project manager did not notify you or seek your consent to allow the road work to encroach onto your land. For this, the municipality does apologize and we have brought this to the attention of the project manager and contractor to ensure this situation does not arise again.
We will have the surveyor finalize the sketch into a formal reference plan with parts to describe the lands which the township required for the installation of the culvert. The surveyor has recommended to us that these parts include a foot or two over and above the actual line of encroachment, in order that we have some ability to access the infrastructure from all angles for repair and maintenance purposes.
5The Notice of Grounds sets out:
During the replacement work fill was inadvertently deposited on the subject lands. The Quinte Conservation Authority has directed the Expropriating Authority to remove some of the excess fill under the authority of its Act.
The owner of the subject lands has refused to allow the Expropriating Authority to access the subject lands to remove the fill. Efforts to negotiate the purchase of the subject lands from their owners have been unsuccessful.
The taking is further necessary to achieve the objective and purpose of the Township in ensuring the safety of the travelling public and the integrity of the culvert works installed.
6A brief review of the document book and photos of the area, the road, the culvert, and surrounding lands makes it clear that the lands are not actively used. The Township requires access in order to carry out what has been ordered by the Conservation Authority to correct a problem or error it created in the installation. To prevent problems in the future, in the maintenance of the culvert and the road, it is requiring a minor taking for access. Based on the affidavit and photos, there is no doubt in the Tribunal’s view there is a need, and the Requestor has not advised of his objection to this.
7After 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 Expropriations 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”.
8For the reasons given above, the Tribunal finds that the taking of Part of Lot 26, Concession 7, Geographic Township of Kennebec, Township of Central Frontenac, County of Frontenac, more particularly described as Parts 1 and 2 on the Draft Plan attached to the Notice of Grounds is reasonably defensible in the achievement of the City’s objectives of supporting the installation and ongoing maintenance of the culvert.
“G. Burton”
G. BURTON VICE-CHAIR
“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.