Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: April 19, 2023
CASE NO(S).: OLT-22-002979
PROCEEDING COMMENCED UNDER subsection 7(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Owner(s): Andrew MacQuarrie
Expropriating Authority: City of Toronto
Property Address/Description: 19 Halford Avenue
Municipality: Toronto
OLT Case No.: OLT 22-002979
OLT Case Name: MacQuarrie v Toronto (City)
Heard: February 3, 2023 by video hearing
APPEARANCES:
Parties
Counsel/Representative*
City of Toronto
J. Jakubowski* N. Muscat*
Andrew MacQuarrie
Self-represented
REPORT DELIVERED BY G. BURTON AND ORDER OF THE TRIBUNAL
1This is a Report of a Hearing of Necessity under subsection 7(1) of the Expropriations Act, held February 3, 2023, upon the request of Andrew MacQuarrie, owner of 19 Halford Ave, City of Toronto.
The City of Toronto
2The City of Toronto (“City”) proposes to take both a temporary and permanent easement over the subject property to reconstruct a failing retaining wall running along Halford Avenue. The Notice of Grounds served by the City [as required by subsection 7(4)] summarized these improvements as the removal of the existing wall, stabilization of the ground soils and construction and maintenance of a new retaining wall.
3The Hearing originally was to include similar requests from the owners of 21, 23, 25 and 27 Halford Avenue. However, the other owners withdrew their requests for Hearings.
4The owner of 19 Halford Avenue continued his request following service of the Notice of Intent to Expropriate a temporary and permanent easement.
5Evidence for the City was provided by Scott Mitchell, Senior Project Manager for large design and construction projects. Halford Avenue had been inspected in 2017. Significant degradation of the retaining wall along this street was noted, as well as issues with the slope stability. A detailed description of the proposed solution, including several drawings of the new retaining wall, was entered in Exhibit 1, the Document Book.
6Mr. Mitchell provided the Tribunal with his consideration of several options for the construction. The original proposal was for a permanent construction easement of 5 metres (“m”) behind a new retaining wall. Revisions now result in only a one m wide, 33 square metre (“sq m”) in area, permanent taking on the east side of the wall on the MacQuarrie property, for future inspection and maintenance. A larger 5 m segment behind it would be for a temporary construction easement.
7Mr. Mitchell acknowledged that in many cases the City requires a larger permanent easement of approximately five m. He explained that the permanent easement could be reduced here, due to the existing steep grade and heavy vegetation. The new wall would front onto a public right of way. Thus a reduced permanent easement was all that was required.
8Mr. Mitchell indicated that the failed retaining wall had been constructed in approximately 1930 and was not an engineered structure.
9The new wall would be constructed using today’s engineering techniques. Thus the life cycle of the new wall is projected to be 50 years, although Mr. Mitchell indicated that it would be structurally sound for much longer. In his opinion, this supported a one m setback from the property boundary.
10The benefit of the permanent easement is that the City would have control over the rest of the wall, which is needed to maintain access to the wall at any time. The temporary easement is needed for construction, regrading, drainage and for control over the vegetation.
The Owner
11Mr. MacQuarrie had several questions related to the height of the wall, the timing of the project, the relationship of SNC Lavalin to the contractor and the budgetary consideration of the project.
Opinion and Finding
12None of Mr. MacQuarrie’s issues as raised are related to the statutory test of necessity of the taking. The evidence demonstrated to the Tribunal that the reconstruction of the retaining wall requires both the temporary and permanent easements. The current location of the existing wall is partly on the public right of way, and, due to its degraded condition, represents a safety hazard to the public. The Tribunal has no doubt that the reconstruction of the retaining wall is required, and that a permanent easement of one m is sufficient.
13Mr. MacQuarrie’s preference for a five m permanent easement as opposed to the one m permanent easement is not supported by the technical evidence.
14After considering all of the evidence and arguments, the Tribunal concluded 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 Parkins v. the Queen in right of Ontario et al., 1978 CanLII 1254 (ON CA), 85 DLR (3d) 581, 19 O.R. (2d) 473 determined that the test that the inquiry officer must apply can be expressed as to whether the proposal is “reasonably defensible” in achievement of the City’s objectives.
15For the reasons given above, the Tribunal finds that the taking of the following land, known municipally as 19 Halford Avenue, Toronto and legally described under PIN 10523-0050(LT), is reasonably defensible in the City’s construction of the new retaining wall, for
- A temporary exclusive easement or rights in the nature of a temporary exclusive easement in