Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 4, 2022
CASE NO(S).: OLT-22-002198 (Formerly) LC200033
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E. 26, as amended
Claimant: Secemb Investments Ltd.
Respondent: Ministry of Transportation
Subject: Determination of compensation
Description: Compensation for expropriation of 47-51 Yonge St.
Property Address: 47-51 Yonge Street
Municipality/UT: Ottawa/Ottawa
OLT Case No: OLT-22-002198
Legacy Case No: LC200033
OLT Lead Case No: OLT-22-002198
Legacy Lead Case No: LC200033
OLT Case Name: Secemb Investments Ltd. v. MTO
Heard: June 2, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Secemb Investments Limited (“Claimant”)
T. Fleming and M. Black
Ministry of Transportation (“Ministry”)
B. Haynes/ B. Lekhi/ l. Zarum (Student at law)
DECISION DELIVERED BY BLAIR S. TAYLOR AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The matter before the Tribunal concerns a claim for compensation pursuant to the Expropriations Act (“EA”) arising out of an expropriation of the lands known municipally as 47-51 Young Street in the City of Ottawa (“Subject Lands”).
PURPOSE OF THE TAKING
2The purpose of the expropriation was to facilitate the rehabilitation/replacement of the existing Queensway Bridge.
BACKGROUND
3The Subject Lands are located on Young Street and abut Provincial Highway 417. The Subject Lands are rectangular in shape with 220 feet of frontage onto Young Street, a depth of about 100 feet, and an area of about 20,909 square feet (“sq ft”) with full municipal services.
4The Subject Lands were improved in or about 1949 and contained a 1 storey multi-tenant commercial building. No survey or reference plan was put into evidence by the Claimant, but it appears that the commercial building had about 20,740 sq ft of Gross Floor Area (“GFA”), whereas the Gross Leasable Area (“GLA”) was 19,212 sq ft.
5As the commercial building occupied almost all of the Subject Lands, tenant parking was facilitated through an Encroachment Agreement (not produced at the hearing) with the City of Ottawa enabling the Claimant’s tenants to park on the City owned right-of-way for about +/-14 parking spaces (as per the Claimant’s appraisal found in Exhibit 3).
6The Subject Lands had six tenants whose tenancies ranged in area from 7,070 sq ft to 847 sq ft.
7The Ministry expropriated the whole of the Subject Lands and the building has been demolished.
8The Claimant produced its appraisal reports: the first is dated as of March 8, 2018, and the second is dated August 12, 2021 (prepared as a response to the Ministry’s appraisal). The Claimant’s appraisals found the market value at February 7, 2018 to be $4,500,000.00 relying on the direct comparison approach.
9The Ministry’s appraisal is dated as of April 26, 2018. It utilized both a direct comparison and an income approach and arrived at a market value as of February 7, 2018 of $2,605,000.00. Additionally the Ministry’s appraisal also did a lost income assessment, including both income and operating expense loss, which was estimated to be $507,000.00.
PLEADINGS
10The Claimant’s Notice of Arbitration and Statement of Claim is found at Exhibit 1. In summary the Claim sought:
a. $4,500,000.00 as the market value of the Subject Lands (less the $2,605,000.00 paid by the Ministry);
b. Executive and consultant time for a search for replacement property;
c. Legal, appraisal and other costs; and,
d. Interest in accordance with s. 33 of the Expropriation Act commencing in the Spring of 2014.
11The Ministry’s Reply is found at Exhibit 2 and it notes:
a. that a settlement has been reached for the business loss in the amount of $507,000.00 (but denies there is any interest owing on that sum);
b. that the only remaining issue is the market value of the Subject Lands;
c. pleads that the Claimant’s valuation is excessive;
d. denies that the Claimant lost productive use of the property prior to the expropriation as there were still tenants at the time of expropriation; and
e. that the Claimant has been fully compensated for the lost rental income, and that the claim should be dismissed.
SETTLEMENTS
12As noted from the Ministry’s Reply, the claim for business loss was settled.
13At the commencement of the hearing the Tribunal was advised that a pre-trial settlement had been reached on the market value of the Subject Lands at $3,200,000.00, with interest after February 1, 2018.
14The Tribunal notes that the settlement on market value was not filed as an exhibit with the Tribunal.
OUTSTANDING ISSUES
15With these two settlements, the Tribunal was advised that the only outstanding issues to be litigated were:
a. Interest and its commencement date; and
b. The Claimant’s claim (made at the hearing) for interest at a rate exceeding 6% due to delay by the Ministry.
DECISION
16As noted above, significant settlements were reached by the parties prior to the hearing.
17With regard to the claims advanced at the hearing, for the reasons set out below, the Tribunal dismisses the claims as they relate to the quantum of interest, and the commencement of interest.
18In light of the success of the Claimant, the Tribunal awards the Claimant its reasonable costs, which are to be agreed upon, failing which they may be referred to an assessment officer.
THE STATUTORY REGIME
19There are a number of sections of the EA that warrant consideration in this hearing with regard to process and for the claim for interest.
20The Tribunal would first note that the EA specifies that where the statutory authority and the owner have agreed to dispense with negotiation proceedings, either party may serve a notice of arbitration on the other and upon the Tribunal to have compensation determined by arbitration (see s. 26(b)).
21Then s. 29(1) sets out that the Tribunal shall determine any compensation in respect of which a notice of arbitration has been served upon it under s. 26 or 27.
22S. 33(1) deals with interest and provides as follows:
Subject to subsection 25(4), the owner of lands expropriated is entitled to be paid interest on the portion of the market value of the owner’s interest in the land and on the portion of any allowance for injurious affection to which the owner is entitled, outstanding from time to time, at the rate of 6 per cent per year calculated from the date the owner ceases to reside on or make productive use of the lands.
(Emphasis added)
23Then s. 33(4) states:
Where the Tribunal is of the opinion that any delay in determining compensation is attributable in whole or in part to the expropriating authority, the Tribunal may order the expropriating authority to pay to the owner interest under subsection (1) at a rate exceeding 6 per cent per year but not exceeding 12 per cent per year.
24S. 13 of the Ontario Land Tribunal Act enables the Tribunal to make rules governing its practices and procedures, by which the Tribunal has created its Rules of Practice and Procedure (“Rules”). Part II of the Rules deal with Expropriation Proceedings: see Rules 26.1 to 26.27.
25Rule 26.2 provides some definitions including:
“pleadings” mean the Notice of Arbitration and Statement of Claim or Notice of Arbitration or Reply.
26Rule 26.6 requires the service of a combined Notice of Arbitration and Statement of Claim:
A claimant seeking compensation shall serve a combined Notice of Arbitration and Statement of Claim on the respondent and shall file with the Tribunal proof of service of the Notice within 10 days of the date of service.
27And finally from the Rules, Rule 26.16 provides that the Rules of Civil Procedure apply to proceedings under Part II of the Rules.
JURISPRUDENCE
28The Supreme Court of Canada has held that the expropriation of property is one of the ultimate exercises of governmental authority: Toronto Area Transit Authority v. Dell Holdings Ltd 1997 CanLII 400 (SCC), [1997] 1 S.C.R 32.
29The Supreme Court of Canada has also confirmed that the EA is a remedial statute, which is to be read in a broad and purposive manner to fulfill the statute’s aim, which is to fully compensate an owner whose land has been expropriated.
RATE OF INTEREST
30The Tribunal will first deal with the Claimant’s oral request at the hearing to increase the rate of interest from the statutory 6% to 12% pursuant to s. 33(4) of the EA.
31This issue was first raised at the hearing by the Claimant’s counsel in his Opening Statement and principally relates to pre-expropriation delay.
32Counsel for the Ministry responded to indicate that this claim was not within the Claimant’s pleadings, that no amended pleadings were ever made, and there was no motion brought to amend the pleadings.
33In his closing argument, counsel for the Claimant confirmed that there were no amended pleadings seeking a higher rate of interest, but that the Tribunal had an “inherent authority” to amend the pleadings. When asked by the Tribunal as to the source of that inherent authority, it was advised it was in the Rules of Civil Procedure.
34The Tribunal first notes Exhibit 1, the combined Notice of Arbitration and Statement of Claim claims the following:
24 The Claimant claims interest as calculated by the Act (6% per annum) on the difference between the Market Value of the Property as calculated by the Tribunal and the amount paid by the Minister, calculated from June 1, 2018 to the date of payment of the total amount ordered to the Claimant.
25 The Claimant further claims interest at the said rate of 6% per annum on the Market Value starting in the Spring of 2014, the date the Minister’s representative confirmed that the Property would be taken, until June 2018.
26 The Claimant pleads, and the fact is, that when the Minister’s representative advised the Claimant that the Property would be taken by the Ministry, the Claimant had a legal obligation to so advise its tenants, and was so directed by MTO. Certain existing tenants who otherwise would have renewed their leases did not do so in light of such revelation; and certain other tenants found alternative space, creating losses that but for the expropriation would not have been incurred.
27 The Claimant lost the productive use of its Property prior to the actual taking by the Minister. Section 33(1) of the Act provides that the interest on Market Value is calculated from the date the Claimant lost productive use of the Property. The date that the owner lost productive use of its property was the spring of 2014 and interest should be calculated from this date.
(Emphasis added)
35The Tribunal also notes from the Rules of Civil Procedure, Rule 26.01
On a motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that cannot be compensated for by costs or an adjournment.
(Emphasis added)
36The Rules of Civil Procedure go on in Rule 26.02 to provide three options for amending pleadings: first without leave and before the close of pleadings, second on filing the consent of all parties, or third with the leave of the court.
37It is apparent that no amended pleading was made by the Claimant before the close of pleadings. Neither was there an amended pleading with the consent of the Ministry nor a motion brought seeking the leave of the Tribunal, nor any request for an adjournment. The claim was simply advanced in counsel’s Opening Statement.
38While the EA is a remedial statute to be given a broad and liberal interpretation, the EA clearly provides that when the parties have agreed to dispense with negotiation proceedings, then the (litigation) process begins with a notice of arbitration, and the duty of the Tribunal under s. 29 is to determine compensation in respect of which a notice of arbitration has been served on it.
39To that end the Tribunal has its Rules for expropriation hearings which, in order to ensure a fair and transparent hearing process, mandates the filing of a combined notice of arbitration and statement of claim which is to be served on the respondent. Further the Rules of Civil Procedure are noted as being applicable to proceedings under Part II of the Tribunal’s Rules.
40The prejudice that arises from the failure to amend one’s pleadings but to attempt to advance an amended claim at the hearing is obvious: the hearing process would not be fair or transparent. The respondent would be prejudiced by not being able to file a response and appropriately prepare for trial.
41This oral request simply comes too late in the hearing process to be entertained. If it were, rather than a fair and transparent hearing process, it would be “trial by surprise”, with prejudice to the Ministry.
42Accordingly, the Tribunal will consider the Claimant’s pleadings as filed in Exhibit 1, and will not consider the late oral request to consider an increase to the rate of interest pursuant to s. 33(4) of the EA.
43In the alternative, were the Tribunal to be wrong in this finding, the Tribunal considered the following:
The Tribunal heard the viva voce evidence of Eric Levin, President of the Claimant, that he was advised on September 25, 2013 that the Ministry could not replace the bridge with the building on the Subject Lands, and it was clear to him at that time that the Ministry was going to take the building and the matter dragged on for 4 ½ years.
Exhibit 3 Tab 3 contains the witness statement of Mr. Levine and in paragraph 4 he states that on November 15, 2013 he first met with the Ministry, but in paragraph 5 he states: “At this meeting, I understood there was a possibility that the Property could be expropriated. As a result I retained Soloway Wright as legal counsel for Secemb.”
Further in the said witness statement, it appears that in May of 2014 the Ministry held a Public Information Centre and at that time Mr. Levin received a copy of the Preliminary Design and Environmental Assessment Study.
Subsequently in an email dated February 24, 2015, the Ministry advised that the technically preferred approach will result in the Ministry requiring the Subject Lands.
While the Claimant’s appraisal dealt with the market value, the Ministry’s appraisal dealt with both the market value and an identified business loss.
On May 1, 2018 the Ministry sent a s. 25 Offer of Compensation which was accepted on May 7, 2018 on a without prejudice basis to have the Claimant’s final compensation determined by the Tribunal.
In November 2018 the Claimant applied for mediation. The Board of Negotiation met on January 17, 2019, which resolved the business loss at $507,000.00 but did not resolve the market value for the taking or the issue of interest.
Mr. Levin complained to the Tribunal that the Ministry’s appraiser did not attend at the mediation. The Tribunal notes that Rule 26.26 provides that Rule 18 under Part I applies and Rule 18 mandates that each party is required to have in attendance at a mediation an individual or individuals having the authority to make binding decisions, or with the requisite authority to make recommendations to a decisions making body who can make a binding decision. There is no requirement for an appraiser to attend.
On or about the end of May 2022, the parties settled on the compensation for the taking at $3,200,000.00 with interest from February 1, 2018.
Exhibit 3 Tab 3 contains the witness statement of Mr. Levin where the tenancies are set out in a chart identifying the tenant, the tenant’s Gross Leasable Area (“GLA”), the lease expiry date, and the date the tenant vacated the Subject Lands.
The chart notes that the largest tenant at 7,070 sq ft left on April 30, 2015 when its lease expired. The second largest tenant at 3,943 sq ft left on January 1, 2016 when its lease expired. The four remaining tenants left either January 31, 2018, or February 28, 2018. The two largest tenants occupied about 58% of the GLA.
44First it has to be recognized that the Tribunal is a creature of statute. It only has the jurisdiction provided by statute. Unlike a court of law, the Tribunal has no equitable jurisdiction.
45The Tribunal finds that while the result of the Environment Assessment process may have appeared obvious to the Claimant’s president, nonetheless the Ministry is required by law to proceed in accordance with the requirements of the Environmental Assessment Act.
46Additionally it is clear from the Notice of Arbitration and Statement of Claim and Ministry’s Reply that the parties (and their respective appraisers) approached the issue of compensation from very different perspectives: the Claimant based on market value and executive and consultant time and the Ministry from market value and business loss.
47The Tribunal notes that: a s. 25 Offer of Compensation was accepted on a without prejudice basis; that the Claimant and the Ministry, were able with the assistance of the Board of Negotiation while not able to resolve the issue of market value, did settle the (not pleaded) business loss as set out in the Ministry’s appraisal; and that on the eve of the Tribunal hearing the parties were able to settle the issue of market value at a quantum much closer to the valuation by the Ministry of $2,605,000.00 than by the Claimant at $4,500,000.00.
48These facts lead the Tribunal to conclude that the parties had very different approaches to the claim for compensation: both parties were steadfast in their respective views of the outstanding issues; with Tribunal assistance the business loss was settled; and on the eve of trial the market value was settled. Such circumstances do not resonate with delay by the Ministry, but rather a prudent approach to the resolution of certain issues which arose from very different approaches.
49The circumstances noted above do not persuade the Tribunal that it ought to increase the quantum of interest to exceed the statutory 6% and prescribe a 12% rate of interest due to delay.
PRODUCTIVE USE
50Counsel for the Claimant submitted in closing, that interest on the market value should commence in November of 2013 (contrary to the claim in Exhibit 1) based on the Claimant’s first meeting with the Ministry. In the alternative he submits that the interest should commence on May 1, 2015 being the day the space of the largest tenant (occupying about 37% of the total GLA) became vacant.
51Counsel argued that the purpose of the EA is that an owner is to be put in the same place it would have been in but for the expropriation.
52Counsel submitted that the expropriation deprived the Claimant of the productive use of the Subject Lands as it resulted in the departure of its largest tenant (37%) on April 30, 2015.
53As this was communicated to the Claimant in September 2013, that is the appropriate date for the interest to commence, and in the alternative, it should commence immediately after the largest tenant left.
54In support of that position he took the Tribunal to the following decisions:
Partition Holding Ltd. v. Ontario (Minister of Transportation and Communications) 1986 CarswellOnt 693 (Ont. C.A.) (“Partition”), where the Court of Appeal found that the productive use of the lands in question were terminated by a highway designation plan and ordered interest from that date.
Erbsville Road Development Inc. v. Waterloo Region District School Board 2015 ONSC 5216 (“Erbsville”), where the Divisional Court awarded pre-expropriation interest on a vacant parcel within a plan of subdivision that the school board expropriated.
Nova Scotia (Attorney General) v. S&D Smith Central Supplies Limited 2019 NSCA 22 (“Smith Central Supplies”), where there was 14 year gap between a public meeting illustrating three possible highway routes (two of which would sever the property in question) and then the expropriation and the Nova Scotia Court of Appeal awarded interest to the 1998 meeting.
Vandenbelt v. Ottawa-Carleton (Regional Municipality) 1980 CarswellOnt 764 (“Vandenbelt”), where the Ontario Supreme Court awarded pre-expropriation interest in the case where the landowner had made a site plan application that was withheld by the municipality.
1085372 Ontario Limited v. City of Toronto 2020 ONSC 1136 (“1085372 Ontario Limited”), where pre-expropriation interest was awarded as City staff had recommended acquisition of the property, City Council had refused the staff recommendation, the owner had made a development application, and then the City expropriated the lands.
55All these cases it was submitted were in support of counsel’s contention that the Claimant had been deprived of the “productive use” of the Subject Lands commencing in 2013, or alternatively in the Spring of 2015 and that is when the interest should commence.
56Counsel for the Ministry submitted that no interest should be awarded as there had been a settlement on the market value with interest from February 1, 2018, and that there had been a settlement on the business loss earlier.
57Counsel argued that the real issue before the Tribunal is: for a multi-tenanted building when did “productive use” of the Subject Lands cease?
58With reference to Mr. Levin’s witness statement in Exhibit 3 Tab 3, counsel noted that the Subject Lands were fully tenanted with rents paid until April 30, 2015 when the first tenant (who occupied 37% of the total GLA) left. So at that time 63% of the Subject Lands were still tenanted with rents being paid.
59The next tenant occupying 21% of the total GLA left on January 31, 2016, which resulted in 42% of the Subject Lands being tenanted, and it remained that way until the four remaining tenants left: the first on January 31, 2018, and the other three on February 28, 2018.
60Counsel reminded the Tribunal that the issue of business loss had been settled, and that issue is when did the productive use cease?
61Counsel referenced the Erbsville case noting that these were vacant lands that the School Board sought to acquire. But there the Court also stated that productive use must be related to the core purpose for which the lands were being held. The Court referenced Levine v. Ottawa (City) 1990 40 O.A.C. 381 (“Levine”), where the Divisional Court held that the then Ontario Municipal Board had been correct to find that productive use was being made of the property after the landowner had abandoned his plans, because he continued to lease the apartments. Further the court said that “…the one theme that does seem to run consistently through all of the cases to which I have made reference is that, in order to be productive, the use being made of the land must be significant, even if it is not profitable.”
62Then the Tribunal was directed to Jasper v Ottawa (City) 2008 CarswellOnt 4028 (“Jasper”), a decision of the Ontario Municipal Board with regard to an expropriation of a single detached dwelling that had been rented out. There the Board in reference to the question of “productive use” stated:
50 Although Sharon Ann Jasper testified these were not money making leases, profit or degrees of profit are not the test in determining productive use. The jurisdiction of this Board to award interest prior to the date of expropriation is clearly related directly to productive use- Partition Holdings Ltd. If rental is at a loss, that does not constitute cessation of productive use.
COMMENTARY AND ANALYSIS
63Although requested by counsel for the Claimant at the hearing, there is no pleading or amended pleading that seeks interest for the business loss.
64Thus the issue before the Tribunal for the commencement of any pre-expropriation interest is: when did productive use of the Subject Lands cease?
65The Claimant argues that the core purpose for which the Subject Lands were held related to holding, improving, enlarging the GLA of the Subject Lands for which the Claimant was deprived of in 2013 or in May of 2015 when the first tenant left.
66While Mr. Levin testified as to opportunities to expand the GLA of the Subject Lands (for example filling in the “notch” in the building) there was no evidence this was ever initiated. Moreover as the building on the Subject Lands appeared to cover nearly 100% of the property, and parking is only provided by means of an Encroachment Agreement to park on the municipal right-of-way, it would appear that there would likely be some zoning hurdles that would have to be overcome to achieve that expansion. But no evidence of any application was filed.
67Both appraisals in this matter opine that the highest and best use for the Subject Lands lie in the continuation of the present use of the property.
68When then did “productive use” of the Subject Lands cease?
69The Tribunal has considered the line of cases provided by counsel for the Claimant.
70In Partition, the Province actually registered a highway plan against the vacant lands three years before they were expropriated, thus essentially freezing the development potential of the lands. This is readily distinguishable from the matter at hand.
71In Erbsville, again the facts of that decision relate to vacant lands that the school board sought to acquire and that there were no productive uses that the Claimant could put the lands to and so interest was awarded pre-expropriation.
72In Smith Central Supplies, here the facts relate to a Nova Scotia highway corridor of about 11 acres through the property rendering one remnant parcel almost worthless. The facts relate to a different regulatory process for highway construction and that there was a 14 year gap between notice to the landowner of a prospective expropriation and the actual expropriation.
73In Vandenbelt, vacant lands were expropriated not once, but three times for the construction of a ring road. The landowner had filed a site plan application and the municipality had decided to withhold approval of the site plan. Again these facts are clearly distinguishable from the matter before the Tribunal where no applications were made.
74Finally in 1085372 Ontario Limited, the Divisional court was considering a claim for compensation arising from an expropriation. The landowner had met with City staff on a proposed mixed-use development of 14 storeys, but the City advised that it wanted the property for a ring road. The City took the matter to City Council for direction to acquire the property, but City Council refused the staff recommendation, and the landowner then applied for its development. The City later expropriated the property and offered $9,000,000.00 which was accepted but without prejudice to a claim for compensation which was successful at $18,000,000.00 with an award of interest at 12% on the difference between the $9,000,000.00 and the $18,000,000.00 from the period from the date of acceptance of the $9,000,000.00 to the date of the Tribunal decision. Again these facts are clearly distinguishable from the matter at hand.
75The Tribunal has considered the line of cases cited in Jasper.
76The Tribunal concurs with the finding in West Hill Redevelopment Co. v Ontario 2001 CarswellOnt 5824 where the Ontario Municipal Board found that the date upon which an owner ceases to make productive use of the land is a question of fact. In that case the Board found that the owner had continued to lease the property and actively pursued the “co-existence” development concepts with the municipality and did not award interest and declined to make an interest award from 1989.
77In Levin the Divisional Court dealt with an appeal from the Ontario Municipal Board for compensation arising from the expropriation of a 9 unit apartment building. The claim inter alia was that the landowner ceased to make productive use of the property as of 1983 when the lands were designated as heritage lands. The Court said:
…But the Board found, in my opinion correctly that he continued the prior use to the time of expropriation. Since the leasing of the apartments continued as before, the fact that the books show a loss, does not mean that he was not making productive use of the lands.
78In Netto Holding Ltd. v. Sudbury (City) 1973 CarswellOnt 1338, the Ontario Municipal Board was dealing with acclaim for compensation for an expropriation of a property occupied by three tenants. The claim was for an award of interest pre-expropriation. The Board found that the property was tenanted and remained productive up to the date of possession by the City and there was no evidence of any interference with the productive use of the lands.
79Returning to Jasper, the Tribunal observes firstly that in Levine cited above, leave to appeal was refused by the Court of Appeal and the Supreme Court of Canada.
80Also at paragraph 51 the Tribunal notes:
The Board, based on these authorities, rejects the Claimants’ position that interest should run from 1997 when there was a desire to acquire the property and the Environmental Assessment process was completed. From an earlier point in 1985 for 20 years, the property was leased (albeit without profit) up to May of 2005. The Board, does however, find that the subject property was vacant from May 31, 2005, and does award interest at the statutory rate of 6% from June 1, 2005 to the date of payment.
81The Tribunal was not provided with any case law considering the termination of productive use from the staggered departure of tenants from a multi-tenanted building such as is now before the Tribunal.
82As there may not be any such reported case, the Tribunal reflects on the findings in Levine where the leasing of the apartments had continued at an apparent loss, but the Divisional Court still found productive use. Similarly in Jasper the Board found that the leasing of the property was at a loss, but it was still a productive use.
83From these cases it appears to the Tribunal that productive use is a question of fact unaffected by loss of profit, and that in these circumstances where there was the staggered departure of the tenants, that until the last tenants left, there remained the productive use of the Subject Lands.
FINDINGS
84The Tribunal finds that the productive use of the Subject Lands was as a rental building and that use continued until the last tenants left and it thus ceased on February 28, 2018.
85Although never filed as an exhibit with the Tribunal, the Tribunal understands that the settlement on the market value of the Subject Lands included interest after February 1, 2018.
86In these circumstances the Tribunal dismisses the claim as it relates to the commencement date of the interest on the market value.
SUMMARY
87There is no basis for the Tribunal to increase the interest rate from the statutory 6%, as firstly it was never pleaded: secondly the Tribunal is a creature of statute and does not have any inherent jurisdiction to amend pleadings; and thirdly the Tribunal does not find any delay in the determination of the compensation but rather two widely different approaches as to the appropriate compensation. In this regard the Tribunal notes that a settlement was reached in 2019 on the (not pleaded) business loss, and a pre-trial settlement reached on the market value.
88The Tribunal finds that the productive use of the Subject Lands was as a rental building which continued until February 28, 2018 when the last tenants departed.
89Counsel for the Claimant in his closing submissions referenced the 2019 settlement for the business loss but highlighted the fact that no interest was paid on the business loss. Counsel for the Ministry denied that there was any interest owing on the business loss and argued that the Tribunal ought not make any order as it relates to that claim.
90To the Tribunal, having considered again the Claimant’s pleadings, it can find no reference to a claim for business loss or interest on business loss. In fact the only pleadings that relate to interest are as to market value (paragraph 24, and 25) and the quantum of the interest was pursuant to s. 33(1) of the EA being 6% (paragraph 27). As noted, in fact the Claimant’s appraisal makes no reference to business loss, whereas the Ministry’s appraisal did and arrived at a value of $507,000.00.
91As noted above, significant settlements were reached by the parties. For the reasons set out above with regard to the claims advanced at the hearing, they are dismissed by the Tribunal.
92In light of the success of the Claimant, the Tribunal awards the Claimant its reasonable costs, which are to be agreed upon, failing which they may be referred to an assessment officer.
93This is the Order of the Tribunal.
“Blair S. Taylor”
BLAIR S. TAYLOR
MEMBER
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 (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.