Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 02, 2023

CASE NO(S).: OLT-23-000353

PROCEEDING COMMENCED UNDER subsection 6(2) of the Expropriations Act, R.S.O. 1990, c. E.26.

Expropriating Authority: Metrolinx

Owner: New Apostolic Church Canada

Property Address: 6484 Finch Avenue West

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-23-000353

OLT Lead Case No: OLT-23-000353

OLT Case Name: New Apostolic Church Canada v Metrolinx

Heard: October 17, 2023 by Video Hearing

APPEARANCES:

Parties	Representative
New Apostolic Church Canada	S. Rayman
Metrolinx	A. Flarity, M. Cherkas

REPORT BY D. ARNOLD DELIVERED BY THE TRIBUNAL

1This is the Report of a Hearing held pursuant to s. 7 of the Expropriations Act, R.S.O. 1990, c. E.26, as amended (the “Act”) requested by New Apostolic Church Canada (the “Church”) pertaining to an application by an expropriating authority, Metrolinx, for approval to expropriate a temporary limited easement interest in certain of the land owned by the Church that is municipally known as 6484 Finch Avenue West in the City of Toronto (the “Subject Property”).

2Pursuant to ss. 7(5) and (6) of the Act, the purpose of the Hearing is for the Tribunal to “inquire into whether the taking of the lands or any part of the lands of an owner…. is fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority” and, following the Hearing, to issue a Report respecting the Hearing that contains a summary of the evidence and arguments advanced by the Parties, the Tribunal’s findings of fact, and the Tribunal’s opinion on the merits of the application for approval to expropriate the subject interest in the land and the reasons for the opinion.

3The following documents were entered as Exhibits in Evidence at the Hearing:

Exhibit 1: Affidavit of Andrew Malcolm Brown affirmed July 19, 2023 (the “Brown Affidavit”)

Exhibit 2: Document Brief of Metrolinx dated July 19, 2023

Exhibit 3: Caselaw Brief of Metrolinx

Exhibit 4: Document Brief of the Church excluding Tabs 4,6,11, and 12

Exhibit 5: Caselaw Brief of the Church

The Application for Approval to Expropriate

4On March 28, 2023, Metrolinx served the Church with a notice of application for approval to expropriate a temporary (one-month) limited easement interest for certain purposes pertaining to driveway grading over a portion of the Subject Property described as Part 1 on the “Schedule 35” drawing attached as Exhibit “B” to the Brown Affidavit (the “Proposed Taking”). The Proposed Taking is comprised of approximately 45.6 square metres and its purpose is described in the application as follows:

For the purposes of a temporary limited interest being a temporary easement (Driveway Grading) in gross, in, on, over and through the identified lands for all works and uses in connection with the construction of the Project and the right to pass over and occupy, on an exclusive basis as necessary, with personnel, materials and equipment for a period of one (1) month, provided Metrolinx shall ensure continuity of access to the properties at all times.

Associated with the purposes of facilitating the construction and operation of the Finch West LRT Project (the “Project”) and works ancillary thereto.

Evidence and Arguments of the Expropriating Authority, Metrolinx

4In response to the Church’s request for this Hearing, Metrolinx served and filed a Notice of Grounds as required by ss. 7(4) of the Act. In the Notice of Grounds, Metrolinx identified a comprehensive list of public transit-related objectives including specific objectives pertaining to the Finch West LRT Project in respect of which the Proposed Taking is being sought.

5Metrolinx called one witness, David Ballantyne, to provide evidence at the Hearing, and Mr. Ballantyne was qualified as an expert to provide opinion evidence pertaining to civil public infrastructure engineering matters. Mr. Ballantyne testified that the objectives of the Finch West LRT Project include the replacement of congested, overcrowded public transit bus service with an 11 kilometre light-rail transit line (the “Finch West LRT”). Mr. Ballantyne testified that, in the vicinity of the Subject Property, the road allowance of Finch Avenue West was widened in order to accommodate the infrastructure of the Finch West LRT including two light rail tracks. This widening entailed a lowering of the grade of the existing Finch Avenue West road allowance such that there is a grade differential between the newly widened Finch Avenue West and the Subject Property. Mr. Ballantyne testified that the Proposed Taking is required in order to re-grade the slope so that the Subject Property’s driveway “ties in” with the newly widened Finch Avenue West road allowance, as well as to repair the driveway curbing. In this regard, Mr. Ballantyne referred to the photographs found at Tab 18 of Exhibit 2 depicting the current grade differential that is proposed to be addressed. Mr. Ballantyne testified that without this driveway regrading work, vehicles using the driveway could sustain damage through “hitting the trough” created by the grade differential.

6Mr. Ballantyne testified that the required work would be accomplished within the limits of the Proposed Taking and that all staging of material and construction vehicles would be on a closed lane of Finch Avenue West, and moreover, that signage on the Subject Property would delineate the Proposed Taking so that contractors and other agents of Metrolinx would be aware of the permitted area of the Proposed Taking within which to work and site monitors would attend to ensure adherence.

7Mr. Ballantyne estimated that the required work pursuant to the Proposed Taking would entail removal of some asphalt, regrading through use of machinery and restoration of the asphalt and curbing. Mr. Ballantyne opined that the subject work would require approximately two weeks but one month is being sought in connection with the Proposed Taking in case weather conditions delay or hinder completion of the required work.

8On cross-examination, Mr. Ballantyne clarified that the Proposed Taking does not abut the Finch Avenue West road allowance and is surrounded by lands owned by the Church with respect to which Metrolinx does not currently have a right of access. Previously, Metrolinx had rights of access over lands described as Part 4 on Expropriation Plan AT 5038130 (the “Access Lands”), which would have provided the necessary access from Finch Avenue West to the Proposed Taking; however, these rights expired in September, 2023. Accordingly, Mr. Ballantyne opined that the Proposed Taking should be modified to include the Access Lands.

9Metrolinx submitted that the Proposed Taking should be modified to add the Access Lands. At the time that Metrolinx commenced its application to expropriate the Proposed Taking, it was anticipated that Metrolinx would have possession of the Proposed Taking while the temporary easement over the Access Lands was still in force and effect. With the expiry of this latter temporary easement in September 2023 without possession of the Proposed Taking yet completed however, Metrolinx submitted that the Proposed Taking should be modified to include the Access Lands. Save and except for this modification, Metrolinx submitted that no additional modifications should be made to the Proposed Taking. Metrolinx submitted that the only issue with regard to this proceeding is whether the Proposed Taking for regrading of the driveway access is “fair, sound and reasonably necessary in the achievement of the objectives” of Metrolinx’s Finch West LRT Project. There are various agreements and proceedings pursuant to the Act in connection with other land interests at issue between the Church and Metrolinx, and Metrolinx submitted that those matters are separate and distinct from the subject proceedings.

Evidence and Arguments of the Owner, the Church

10The Church called one witness, Leah Cummings, to provide factual evidence including with respect to the land interest requirements that Metrolinx has obtained from the Church previously in connection with the Finch West LRT Project. In particular, Ms. Cummings testified that there have been previous fee simple and temporary limited interest expropriation proceedings (Tab 1 of Exhibit 4) as well as an agreement pursuant to s. 24 of the Act (Tab 2 of Exhibit 4) and a Permission to Enter Agreement (Tab 3 of Exhibit 4). Ms. Cummings also testified regarding her attendance at the Subject Property on February 17, 2023, at which time photographs of the Subject Property (Tab 7 of Exhibit 4), including photographs of the driveway, gate and posts, and fencing, as well as a cement truck, pickup trucks, and construction materials, were taken.

11In cross-examination, Mr. Ballantyne testified that, to his knowledge, the required relocation of the gate and posts and fencing has not been completed to date. Mr. Ballantyne testified that he is not aware of any extension on the right to enter on to the Access Lands.

12The Church made submissions that the Proposed Taking should be expanded to include additional requirements to address land interests that it submits are required in order to ensure that the Proposed Taking is “fair, sound and reasonably necessary in the achievement of the objectives” of the Finch West LRT Project being undertaken by Metrolinx. The Church submitted that these additional requirements are:

(a) the temporary limited interest described as Part 4 on Plan AT 5018130 (i.e. the December, 2018 Plan of Expropriation that provided Metrolinx with a temporary but now expired easement interest) to provide access to Proposed Taking;

(b) any interests in a new driveway onto Martin Grove Road that Metrolinx needs to retain by way of easement or otherwise;

(d) any lands identified by Metrolinx that have been subject to or will be subject to occupation by it or its contractors to complete the project.

The Tribunal’s Findings of Fact and Opinion

13The Tribunal finds that the lands comprising the Proposed Taking do not abut public road allowance nor any other lands in respect of which Metrolinx or its contractors have rights to facilitate access to the lands constituting the Proposed Taking. Moreover, the Proposed Taking does not include any interest in lands to facilitate such access.

14The Tribunal finds that the Proposed Taking is required in order to complete the regrading and “tie-in” of the Church’s driveway to the new grade of the widened Finch Avenue West road allowance and is in furtherance of the achievement of the objectives of the expropriating authority, Metrolinx, as set out in the Notice of Grounds (Exhibit “H” of the Brown Affidavit) including construction of higher order public transit being the Finch West LRT Project. The Tribunal finds, however, that the Proposed Taking alone does not suffice to be “fair, sound and reasonably necessary” in the achievement of those objectives as it does not abut public lands or other lands that provide access to the Proposed Taking by Metrolinx or its contractors to carry out the required work.

15The Tribunal is of the opinion that a modification to the Proposed Taking is necessary in order to add lands that will facilitate access to the Proposed Taking and complete the regrading and “tie-in” of the Church’s driveway to the road allowance. Consistent with Mr. Ballantyne’s evidence and the submissions of both Metrolinx and the Church, the Tribunal is of the opinion that adding the lands described as Part 4 on Plan AT5038130 (i.e. the Access Lands) would afford such access.

16The Tribunal is of the opinion that modifying the Proposed Taking to add other land interests that address previous and ongoing issues between Metrolinx and the Church including those pertaining to the lands described by the Church as detailed in Paragraph 12 (b) to (d) inclusive above need not be included as part of the Proposed Taking as the Proposed Taking pertains only to the regrading and “tie-in” of the Church’s driveway. The Tribunal finds that resolution of outstanding issues concerning other previous and ongoing land interest dealings between Metrolinx or its contractors and the Church in connection with the Finch West LRT Project constitute matters that are distinct from the Proposed Taking.

17In summary, for the reasons given above, the Tribunal finds that the lands comprising the Proposed Taking are lacking appropriate access and, as such, the Proposed Taking is not “fair, sound and reasonably necessary” in the achievement of the objectives of Metrolinx to implement the Finch West LRT Project, including regrading the Church’s driveway. The Tribunal is of the opinion that if the Proposed Taking is modified to add the Access Lands, then such modified Proposed Taking would be “fair, sound and reasonably necessary” in the achievement of the objectives of Metrolinx to implement the Finch West LRT Project.

“D. Arnold”

D. ARNOLD MEMBER 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.

New Apostolic Church Canada v. Metrolinx, 2023 CanLII 103219

Case Summary