Parkside Hills Inc. v. Hamilton (City), 2023 CanLII 46259

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: May 25, 2023

CASE NO(S).: OLT 22-003809

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant: Parkside Hills Inc.

Respondent: City of Hamilton

Subject: Land Compensation

Property Address/ Description: Part of Lot 8, Concession 4

Municipality: City of Hamilton

OLT Lead Case No.: OLT-22-003809

OLT Case No.: OLT-22-003809

OLT Case Name: Parkside Hills Inc. v. Hamilton (City)

PROCEEDING COMMENCED UNDER subsection 19(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: City of Hamilton

Request for: Request for Dismissal Without a Hearing

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Parkside Hills Inc.

Subject: Proposed Plan of Subdivision - Failure of the City of Hamilton to make a decision

Purpose: To permit a proposed plan of subdivision

Property Address/Description: Part of Lot 8, Concession 4, municipally known as 619 Centre Road

Municipality: City of Hamilton

Municipality File No.: 25T-201003

OLT Case No.: OLT-22-004508

Legacy Case No.: PL101121

OLT Case Name: Parkside Hills Inc. v. Hamilton (City)

Heard: October 31, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel

Parkside Hills Inc. (“Claimant”)

Frank Sperduti Julie Lesage

City of Hamilton (“City”)

Patrick MacDonald

DECISION DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL

INTRODUCTION AND BACKGROUND

1This Decision determines a motion brought by the City to dismiss this Claim advanced by the Claimant under the Expropriations Act (the “Motion”). The Motion was argued on October 31, 2022, but the issuance of this Decision has unfortunately been delayed.

2As provided for in this Decision and the Order, the case management directives and procedural directives also apply to Tribunal Case File No. PL101121.

3In its Notice of Arbitration and Statement of Claim, the Claimant has advanced a Claim for damages under the Expropriations Act in relation to lands known as Part of Lot 8, Concession 4, in the former Township of East Flamborough in the City of Hamilton and identified on the Plan of Subdivision as Block 10 (the “Subject Lands”). The Claimant seeks compensation for the market value of the Subject Lands to be transferred to the City for the purposes of a stormwater management pond. This is based primarily upon the Claimant’s assertion that the City agreed to the jurisdiction of this Tribunal to arbitrate the value of the Subject Lands, based upon its highest and best use, pursuant to the terms of a Subdivision Agreement and the Tribunal is the appropriate forum for the issue of value to be decided.

4The City disagrees with the Claimant’s assertions and denies that it has agreed to arbitration of the land value issue under the Expropriations Act. The City asks that the Claim be dismissed pursuant to s. 19 of the Ontario Land Tribunal Act and s. 4.6 of the Statutory Powers Procedure Act primarily based upon the assertion that the Claim fails to meet the prerequisites necessary to advance a claim under the Expropriations Act and that the Tribunal has no jurisdiction to adjudicate the Claim as advanced by the Claimant.

5For the purposes of hearing the Motion the Tribunal received and reviewed the following material:

1. The Claimant’s Notice of Arbitration and Statement of Claim dated May 18, 2022;

2. The City’s Reply to Notice of Arbitration and Statement of Claim dated June 7, 2022;

3. City’s Motion Record – October 14, 2022, inclusive of the Affidavit of Rachel Woon sworn October 14, 2022;

4. City’s Brief of Authorities;

5. Claimant’s Responding Motion Record October 24, 2022, inclusive of the Affidavit of Meaghan Davies sworn October 24, 2022;

6. Claimant’s Brief of Authorities;

7. Reply Submission of the City – October 26, 2022;

THE POSITION OF THE PARTIES AND THE ISSUES

6Specifically, the City argues that no expropriation proceedings were commenced by it with respect to the Claimant’s Subject Lands and there was no construction of works undertaken by the City. There accordingly can be no claim for compensation relating to the Subject Lands in the manner of an expropriation that can be decided by this Tribunal.

7In its Response to the Notice of Arbitration, consistent with the position taken on the Motion, the City asserted, as a defence, that the Claimant is statutorily barred from advancing its claims as it has, and that there has been no transfer of the Subject Lands to the City, nor any completed agreement for such a conveyance, that would give rise to an entitlement to compensation under the Expropriations Act. There is no valid claim that can be brought before the Tribunal under sections 26 or 30 of the Expropriations Act and the Tribunal has no jurisdiction to consider the Claim.

8The Claimant’s response is that the Tribunal does have jurisdiction to determine the land valuation issue which originates in Conditions of Draft Plan Approval, outstanding since 2014, and emanating from the Tribunal’s previous Orders and decisions. The Claimant asserts that the Tribunal, with its expertise, is best suited to resolve the land value dispute. Should the Tribunal refuse to arbitrate the Claim the Claimant will be required to either apply to the Superior Court, or place the matter before the Tribunal within the still-active Planning Act proceeding, to resolve the dispute, resulting in additional cost and delaying the construction of new units.

9The simple issue in this Motion is whether the Tribunal, as the Claim is framed and before it, has the jurisdiction to hear the Claim. As the Motion has been argued, more precisely, this question of jurisdiction can be parsed into three issues:

(1) If there has been no expropriation under the Expropriations Act, as is this case here, can the Claimant bring, and the Tribunal decide, a claim for compensation payable under s. 26 of the Expropriations Act relating to compensation for the value of the Claimant’s interest in the Subject Lands intended to be taken by the City pursuant to an agreement referenced as a Draft Plan Condition, on the basis that the parties have been unable to reach an agreement reached on the compensation payable for the Subject Lands under the Expropriations Act;

(2) Alternatively, where there has been no taking of land under the authority of the Expropriations Act, can the Claimant be deemed to have “consented” to the acquisition of the Subject Lands by the City, and the City deemed to have attorned to the jurisdiction of the Tribunal, such that s. 30(1) of the Expropriations Act empowers the Tribunal to determine “the compensation to which the [Claimant] would be entitled by this Act if the land were expropriated”; and

(3) Based upon the proceeding commenced by the Claimant, if the Tribunal determines that it does not have jurisdiction under sections 26 or 30 of the Expropriations Act, does it nevertheless have the ability to determine compensation for the value of the Subject Lands as it arises from the Subdivision Agreement between the City and Claimant, and the Draft Plan Conditions approved by the Tribunal in a subdivision application under the Planning Act. This would give rise to the question of what is the alternative means to resolve the dispute if not as a claim under the Expropriations Act.

10It is, in the Tribunal’s view, important to clarify at the outset that in hearing this Motion the Tribunal is not required to, nor will, make any findings or determinations relating to such things as: (a) the substantive underlying question of the value of the Subject Lands or the date of valuation for such determination; (b) the contractual obligations of the Parties relating to payment by the City to the Claimant of the value of the Subject Lands; or (c) which Development Charges Background Study (“DC Background Study”) might be relevant to the determination of value (if either of the DC Background Studies are determinative of this issue). The Parties in their materials have touched upon such matters but these are properly the issues to be addressed upon a hearing on the merits. The lingering question of where the Parties go from there to resolve the dispute will then remain.

11Instead, the Tribunal is only required to determine whether the Tribunal has the jurisdiction to make finding and determinations of these issues as the Claim under the Expropriations Act is before the Tribunal. If the answer is yes, the proceeding can proceed to case management. If the answer is no, the proceeding may be dismissed under s. 19(1) of the Ontario Land Tribunal Act and s. 4.6(1)(b) of the Statutory Powers Procedure Act.

THE FACTUAL BACKGROUND

12The basic underlying facts relating to the Subject Lands and the circumstances in which title to the property was expected to be transferred to the City, are not substantially in dispute. Those factual circumstances, as findings of the Tribunal, are as follows:

(a) In January and December of 2013, the Ontario Municipal Board, as the Tribunal then was, approved amendments to the City’s zoning by-law, the City’s Official Plan/secondary plan, and a Draft Plan of Subdivision to facilitate a subdivision development in the Township of East Flamborough subject to Draft Plan Conditions.

(b) The execution of a Subdivision Agreement was to be executed in the ordinary course in respect of the Board’s Order. The Draft Plan Conditions to the Draft Plan which were then approved, were subsequently modified by the Tribunal in its Decision and Order issued November 17, 2014 (Case File PL101121).

(c) The Order of November 17, 2014, included the standard form of clause granting the authority to the City to clear the Draft Plan Conditions. It also included the commonly seen directive that “In the event there are any issues in implementing any of the conditions of draft approval, the Board may be spoken to.”

(d) The Draft Plan Conditions required provisions to be in place to the satisfaction of the Senior Director of Growth Management, one of which was Condition 7 (ii) relating to the construction of a Stormwater Management (“SWM”) facility, and which stated as follows:

That Prior to Registration the Owner shall ensure that provisions are in place, to the satisfaction of the Senior Director of Growth Management, for the following:

to submit the necessary transfer deeds to the City to convey all lands necessary for the construction of the SWM facility, and any additional lands required to accommodate the final design, in accordance with the City's standards;

(e) Draft Plan Condition 54 related to cost sharing for the stormwater management facility:

The City of Hamilton will share costs with the Owner for the stormwater management facility, based on the upset limit identified in the current Development Charges Background Study, and in accordance with the City's financial policies and as outlined by the D/C Settlement Agreement between Parkside Hills Inc. and the City.

(f) Other development-related appeals of the Claimant were before the Tribunal in relation to the City’s 2009 and 2011 Development Charge By-laws. (“DCBLs”). Those appeals were resolved by way of Minutes of Settlement which provided, among other things as follows:

The City and Parkside agree that the cost for land for the storm water management pond (the "SWMP") for the Parkside Phase 2 Plan shall be one hundred and seventy-five thousand dollars ($175,000) per acre (the "Agreed Upon Amount"), The Agreed Upon amount shall be applicable until May 31, 2017. The Agreed Upon Amount shall be payable when the land for the SWMP is conveyed in fee simple without encumbrances to the City.”

(g) The City’s DC Background Study in 2014 provided “The value for lands located outside the Urban Boundary shall be established by an independent real estate appraisal”.

(h) The City’s DC Background Study in 2019 provided details regarding the SWM Facility and included reference to the value of $175,000 per acre for the Subject Lands referenced in the Minutes of Settlement resolving the DCBL Appeal.

(i) The Affidavit of Rachel Woon in support of the City’s Motion includes the final signed version of Schedule A to the Subdivision Agreement. It references the SWM Pond land cost as 4.324 acres (estimated and to be confirmed by survey) “@ $175.00 / acre” subject to Footnote 4 which provides the following:

The inclusion of the SWM Pond Land Cost above sets out the City's position for valuation only and is without prejudice to the Owner's right to refer this issue to the Local Planning Appeal Tribunal for determination under its applicable laws and procedures.

(j) There is no specific evidence in the form of title documents to identify ownership of the Subject Lands but there is no dispute that the Subject Lands remain in the name of the Claimant and have not been conveyed to the City.

(k) On May 31, 2022 the Tribunal held a Case Management Conference in the Subdivision File, at the request of the Claimant where the request was made by the Claimant that a process be commenced, either related to the conditions of subdivision or through the Tribunal’s processes, to finally resolve the valuation dispute and enable the development to proceed. The Claimant then served and filed the Claim that is before the Tribunal.

THE CLAIMANT’S CLAIM

13The starting point is the form and substance of the Claimant’s claim as it is before the Tribunal. The Notice of Arbitration and Statement of Claim (the “Claim”) as identified by the Claimant has been brought pursuant to the Expropriations Act and “seeks compensation for its interest as owner” of the Subject Lands. The Claim is for $5.6 million “as compensation for the market value” of the Subject Lands. The Claim does not claim compensation for injurious affection.

14The Claim has not identified the specific section of the Expropriations Act, under which the Claim is advanced. Since the Claim, on its face, identified a claim only for compensation for market value of the Claimant-owned Subject Lands, the Tribunal administratively identified the Claim in its Title of Proceeding as a proceeding commenced under s. 26(1) of the Expropriations Act. Nothing turns on this administrative designation in the analysis and determination of this Motion.

15The Claim identifies the planning applications and proceedings before the Tribunal, the eventual Subdivision Agreement between the Parties executed in March of 2015, and the agreement reached and provided for in an agreement for the transfer of the Subject Lands for the SWM Facility. Paragraphs 8 and 9 of the Claim plead that Schedule “F” to that Subdivision Agreement identified the Owner’s right to refer the issue of valuation of the Subject Lands to the Tribunal “for determination under its applicable laws and procedures” notwithstanding the inclusion of the “SWM Pond Land Cost” in Schedule “F”. Upon this basis the Claimant pleads that there is an agreement for this Tribunal to arbitrate the value of the Subject Property.

16In paragraphs 10 through 14 the Claim then pleads the facts upon which the Claimant asserts the highest and best use of the Subject Lands as a holding location for a SWM Facility straddling the urban/rural boundary in the City, which considers “the special adaptability or potential of the Subject Lands for storm water management purposes”. This leads to the Claimant’s position as to the market value of the Subject Lands and recognizes the definition of market value in s. 14(1) of the Expropriations Act as the amount that the land might be expected to realize if sold “in the open market by a willing seller to a willing buyer”. Upon the facts pleaded the Claimant claims, “as compensation for the transfer of the Subject Property to the City…the market value in the amount of $5,600,000.”

17The Claim does not identify such actions or conduct, on the part of the City, that would constitute a pleading that the City has exercised its statutory powers, as an expropriating authority, to take land without the consent of the owner. The Tribunal here notes that “expropriate” is defined in the EA as meaning: “the taking of land without the consent of the owner by an expropriating authority in the exercise of its statutory powers.”

18The Claim makes no reference to, and does not rely upon, a written Agreement between the Parties, whereby the Parties have expressly agreed to put the determination of the market value of the land before the Tribunal under s. 30 of the Expropriations Act. The Claim does plead that Note 4 to Schedule “F” to the Subdivision Agreement represents an agreement for this Tribunal to arbitrate the value of the Subject Lands.

ANALYSIS AND FINDINGS ON JURISDICTION UNDER THE EXPROPRIATIONS ACT

A Question of Jurisdiction

19The Tribunal has considered the evidence provided on this Motion and the submissions of the Parties and has reviewed all the authorities submitted in support of the respective positions. It is the Tribunal’s conclusion that the Tribunal does not have jurisdiction to determine the market value of the Subject Lands under the Expropriations Act, for the reasons that follow.

20The Claimant has strenuously advanced the general submission that the Tribunal is best positioned to resolve the dispute as to the value of the Subject Lands because it possesses the expertise to decide the issue. In the Claim, and in submissions on this Motion, the Claimant urges the Tribunal to adjudicate the value because of its experience in making such determination.

21The Tribunal has considered the additional submission of the Claimant that the Tribunal is ideally suited to resolve issues relating to the value of land, such as the Subject Lands, because of its expertise in valuing land pursuant to sections 42(10) and 51.1(4) of the Planning Act, as well as the Expropriations Act. The Claimant relies upon such experiential responsibility granted to the Tribunal as demonstrative of the Tribunal’s well-placed position to decide the market value.

22That submission itself reinforces the very point made that the Tribunal’s jurisdiction is governed by what has been granted by the Legislature in Acts. The Tribunal’s jurisdiction to determine market value of lands under these sections of the Planning Act relate only to the specific disputes as to the value of payments in lieu of parkland as directed by the Act. In the Tribunal’s view, the Claimant’s reliance upon such expertise relating to jurisdiction granted pursuant to s. 8(1) of the Ontario Land Tribunal Act does not persuasively support an argument that the Tribunal broadly acquires jurisdiction by reason of its expertise or the principle of implicit jurisdiction.

23The Claimant has also referred the Tribunal to the decision of the Divisional Court in Frankl v. Ottawa (City), 2007 CarswellOnt 5100, in which the Court noted that the Tribunal routinely decides market value in expropriations and that this “first-hand exposure invariably generates familiarity and expertise” which merits deference in the market valuation process.

24It is the Tribunal’s view that its experience and expertise in determining market value is not the focused issue before the Tribunal. The issue is one of jurisdiction. In the Tribunal’s view, its acknowledged expertise in market valuation of land cannot distract from the primary question as to whether it has been granted the authority to exercise such land valuation expertise.

25Section 8(1) of the Ontario Land Tribunal Act provides that the Tribunal has exclusive jurisdiction “in respect of all matters in which jurisdiction is conferred on it by this or any other Act”. The Courts have confirmed time and again that any tribunal, and this Tribunal, as a statutory administrative tribunal, possesses no inherent jurisdiction and has jurisdiction only as accorded by the Legislature. The question is accordingly whether the Tribunal, whose powers may only be derived from statute, possesses the authority to adjudicate the Claim that is before it, brought under the Expropriations Act. If the answer is no, then the Claim is not properly before the Tribunal as it cannot be adjudicated.

No Expropriation – [s. 26](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e26/latest/rso-1990-c-e26.html) of the [Expropriations Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e26/latest/rso-1990-c-e26.html)

26It is the Tribunal’s finding that the Claim does not fall within the operative parameters of s. 26 of the Expropriations Act, as there has been no expropriation commenced by the City as an expropriating authority. There has been no exercise of authority by the City to take the Subject Lands. The Claimant acknowledges that it is consenting to the transfer as a component of the planning requirements for the proposed development.

27The Claimant’s Claim requests compensation for the market value of the Subject Lands. Section 13(1) is the relevant section that provides that: “Where land is expropriated, the expropriating authority shall pay the owner such compensation as is determined in accordance with this Act.” One head of damages, in s. 13(2)(a), is the market value of the land. Section 26 of the Expropriations Act then provides a property owner with the right to apply for the determination of that compensation. Section 26 and s. 29, which provides that “the Tribunal shall determine any compensation” under s. 26, are the sections that grant the Tribunal the authority to determine that compensation.

28There has clearly been no expropriation of the Subject Lands commenced by the City within the scheme set out by the Province of Ontario under the Expropriations Act. The City is not exercising its statutory authority to unilaterally take the Claimant’s lands. The City has not taken steps as an approving authority under s. 5(1)(a) to approve the expropriation of lands, inclusive of the Subject Lands, for public works of the City. There has indeed been no public works project leading to the ordinary commencement of the expropriation processes set out in the Expropriations Act. There has been no Notice of Application for Approval to expropriate, no registration of a Plan of Expropriation, nor any Notice of Expropriation served upon any person, including the Owner.

29Accordingly, if there has been no expropriation undertaken under the regime provided for in the Expropriations Act, then there can be no ability of the Claimant to receive the benefit of the supportive provisions of the Expropriations Act which govern a claim for compensation for market value. The Tribunal is mindful of the manner in which the Supreme Court of Canada in Dell Holdings, referred to in the authorities provided, characterized the expropriation processes and the operation of the legislation. The Court said:

The expropriation of property is one of the ultimate exercises of governmental authority. To take all or part of a person’s property constitutes a severe loss and a very significant interference with a citizen’s private property rights. It follows that the power of an expropriating authority should be strictly construed in favour of those whose rights have been affected...”

It would be overreaching to apply the comprehensive compensatory regime set out in the Expropriations Act, which is structured to govern such ultimate exercise of governmental authority, to just any acquisition of lands by a municipality or other expropriating authority. This emphasizes and supports the proposition that the Tribunal must apply a careful and restrictive approach and ensure that it has been granted clear authority under the Expropriations Act to determine a Claim for compensation under that Act under which the Claim is made. And, as noted, if not under the Expropriations Act, the Tribunal must also still determine its jurisdiction to determine the market value of the land under the Planning Act if called upon to do so in the context of the Draft Plan Conditions and the Order of November 17, 2014.

30Also of significance is that the Expropriations Act does not otherwise provide the Tribunal with the authority to consider any other manner of acquisition of an interest in land outside of that expropriation regime. There is no section of the Expropriations Act that grants the Tribunal jurisdiction to consider whether other circumstances of acquisition of lands by an approval authority might be deemed to be or constitute an expropriation other than as provided for in the expropriation regime created by the Expropriations Act.

31This Tribunal has previously applied this approach to the issue of jurisdiction in expropriations in White Star Group of Companies v. Hamilton (City) (April 17, 2020, LPAT Case No. LC200004) (“White Star”) and Marsdin v. Hamilton (City), (2013 CarswellOnt 10709) (“Marsdin”), which are cases the City has included in its Book of Authorities.

32In Marsdin, the Tribunal made reference to the often-cited explanation by the Supreme Court of Canada in Dell Holdings Ltd. v Toronto Area Act Transit Operating Authority [1997] 1. S.C.R. 32 (S.C.C.) (“Dell Holdings”) as to the purpose of the statutory regime for compensation based upon a taking of lands. It bears repeating: “The whole purpose of the Expropriations Act is to provide full and fair compensation to the person whose land is expropriated. It is the taking of the land which triggers and gives rise to the right to compensation.”

33The factual circumstances differ in Marsdin, but some aspects of the Claimant’s submissions on the question of whether there has been an expropriation of lands are the same as those advanced by the Claimant here. The Claimant in Marsdin similarly advocated in favour of a broad and liberal interpretation of the Expropriations Act, consistent with its purpose, to fully compensate a landowner whose property has been taken. As the Tribunal read s. 41(1) in that instance to require the prerequisite taking of land – an expropriation – so too is it required under a Claim pursuant to s. 26(1). Section 13(1), which creates the right to claim compensation under s. 26(1), to be decided by the Tribunal, explicitly states: “Where land is expropriated, the expropriating authority shall pay the owner such compensation as is determined in accordance with this Act.

34The wording of the applicable sections, in their entire context and grammatical and ordinary sense, understanding the scheme and object of the Act, leads to the pointed conclusion – there must be an expropriation.

35The Claimant’s pursuit of the market value of the Subject Lands is based upon a transfer of lands to the City, or more precisely, a purported agreement or intention to transfer the Subject Lands, which was reduced to one of the Draft Plan Conditions in the context of a planning application and appeal. As the Tribunal noted in Marsdin, “expropriation is a process, not the transfer of land” and the factual basis upon which the Claimant’s proceeding is advanced under the Expropriations Act arises from a proposed transfer of the Subject Lands within the framework of the resolution of the Subdivision application (and zoning, secondary plan and Development Charges applications/appeals) implemented through the Tribunal’s Decisions and Orders arising from the settlements.

36As the dispute regarding the amount to be paid by the City to the Claimant does not arise from an expropriation and the expropriation processes provided for within the Expropriations Act, the Tribunal therefore must conclude that the Tribunal has no jurisdiction under s. 26 of the Expropriations Act to determine the market value of the Subject Lands in the Claim that has been filed.

No Expropriation – [s. 30](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e26/latest/rso-1990-c-e26.html) of the [Expropriations Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e26/latest/rso-1990-c-e26.html)

37In the Tribunal’s view, neither does the dispute about the market value, or the Claimant’s Claim to resolve that dispute, fall within s. 30 of the Expropriations Act such that the Tribunal has jurisdiction.

38Section 30 of the Expropriations Act provides as follows:

Application, if no expropriation

30 (1) If the owner of land consents to the acquisition of the land by a statutory authority, the statutory authority or the owner, with the consent of the other, may apply to the Tribunal for the determination of the compensation to which the owner would be entitled by this Act if the land were expropriated, and the Tribunal may determine the compensation. 2021.

39First and foremost, as acknowledged by the Parties, there has yet been no acquisition of the Subject Lands outright by the City.

40Further, as indicated in the analysis above, neither have the Subject Lands ultimately been expropriated by the City. There has been no expropriation process triggering the right to compensation. As the Supreme Court confirmed in Dell Holdings, it is the taking of the land – the unilateral exercising of authority by the expropriating authority under the powers granted by the Expropriations Act – which triggers, and gives rise to, the right to compensation.

41The recognition of the act of expropriation as an exercise of governmental authority by the Supreme Court in Dell Holdings has been noted. There has been no such exercise of governmental authority. There has been no such loss or interference with the Claimant’s private property rights. To the contrary, within the fabric of the planning and development processes, the Claimant proposed a development and sought approvals under the Planning Act to pursue such development. Within that planning and development legislative framework, the final decisions with respect to the Claimant’s applications necessary to permit the proposed development, and related issues arising on matters of development charges, were brought before the Tribunal.

42It is within that planning context that the consensual arrangement for the proposed transfer of the Subject Lands occurred. The proposed transfer negotiated as part of the planning process was necessary to permit orderly development, address planning pre-requisites and policy requirements of both Provincial and municipal planning policies and provide for necessary stormwater management which is routinely a standard requirement for the planning of any proposed development. This indeed ultimately led to the Tribunal’s role in considering and approving the proposed planning instruments necessary to facilitate the development. Under its mandate, this was to achieve good planning in the public interest that conformed to, and was consistent with Provincial and municipal planning policies, and included the requirement for a stormwater facility on the Subject Lands. Within the entirety of the development process, as an element of the settlement, the eventual agreement privately negotiated between the Claimant and the City, resulted in the proposed transfer of the Subject Lands to the City, albeit with an unresolved consensus on the market value to be paid to the Claimant.

43With this factual background the Tribunal is unable to conclude that there was any intended acquisition of the Subject Lands of a manner which was, or is, intended to be governed by the Expropriations Act, given the intent of that Act and the regime it has created. Any acquisition which might arise from the Subdivision Agreement occurs as a matter arising from the development arrangements agreed to between the City and the Claimant and within the context of applications under the Planning Act. The existence of an Order of the Tribunal relating to the Plan of Subdivision, which approved conditions of draft plan approval, is not itself indicative of the authority of the Tribunal to adjudicate the Claim under s. 30 of the Expropriations Act.

44If the Tribunal is incorrect in this regard, and the focus is only upon the wording in that section that there has been “no expropriation,” the Tribunal is nevertheless satisfied it is without jurisdiction to consider the Claim under s. 30 of the Expropriations Act due to the requirements of that section that have not been met.

45In circumstances where, at any stage of the expropriation process under the Expropriations Act an expropriating authority alternatively reaches an agreement with the owner of lands, it is possible to short circuit the process. Section 30 allows an owner the means to accede to the acquisition of the owner’s lands by an expropriating authority without the necessity of the authority advancing all requirements of an expropriation proceeding and still receive the benefit of the Tribunal’s determination of the value of the land, within the operation of the Expropriations Act inclusive of the right to recover costs under the Expropriations Act. This is often done through a written agreement which confirms the consent of the Parties to this end.

46The Tribunal has considered the submissions of the Claimant and cannot conclude that conditions 7(ii) and 54 of the Draft Plan Conditions represent an agreement of the Parties sufficient to satisfy the requirements of s. 30.

47The Tribunal must agree with the City that in order for the Tribunal to accept jurisdiction on such a consensual arrangement there are three requirements. These requirements have previously been identified and adopted by the Tribunal in Ontario v. 1223578 Ontario Limited (2002 CarswellOnt 5229), and 1353837 Ontario Inc. v. Stratford (City) (2013 CarswellOnt 8648). There must be some evidence of an agreement to enter into a s. 30 agreement, and this requires: (1) the owner’s consent to the acquisition of the lands by the statutory authority; (2) either the owner or authority must apply to the Tribunal; and (3) the other party must consent to the application to the Tribunal.

48In this case, the Tribunal accepts the City’s submission and agrees that the pre-requisite explicit consent of both Parties to submit to arbitration by the Tribunal, under the Expropriations Act and have the determination of market value decided under the Expropriations Act regime, does not exist here. There is no such written agreement and the third prerequisite cannot be satisfied.

49The Tribunal has considered, but rejects, the Claimant’s submission that the existence of a footnote in Schedule “F” to the subdivision agreement that the Owner reserved the right to “refer [the valuation issue] to the [Tribunal] for determination under its applicable laws and procedure” does not satisfy the requirements of a s. 30 Agreement. This does not plainly indicate a consent to arbitrate under the Expropriations Act regime and specifically s. 30. This is sufficiently clear to the Tribunal, upon the facts, without the need to consider the back-and-forth dialogue between the City and the Claimant regarding the City’s position that it was not consenting to arbitration before the Tribunal on the matter of the value of the Subject Lands. The referenced content within the Subdivision Agreement does not establish the clear and express consent of the City to arbitration of the market value of the Subject Lands, governed by s. 30 of the Expropriations Act.

50Neither can the Tribunal find that the standard form of directive in the Tribunal’s Decision dated November 17, 2014, which provided that “in the event there are any issues in implementing any of the conditions of the draft approval, the Board may be spoken to” represents an agreement between the Parties, nor even an attornment by the City to the Tribunal’s jurisdiction under s. 30 of the Expropriations Act. As part of the approval of a settlement of the subdivision, a directive of the Tribunal that it is available to consider contentious issues relating to the Draft Plan Conditions, cannot be considered a written agreement of the Parties to bring the valuation issue before the Tribunal under s. 30 of the Expropriations Act.

51The Tribunal also rejects the argument of the Claimant that the continuing jurisdiction of the Tribunal to resolve issues relating to implementing Draft Plan Conditions which it endorsed amounts to something as specific and direct as an acceptance of jurisdiction by the Tribunal under s. 30 of the Expropriations Act. The Tribunal will often retain oversight of Orders relating to planning matters in this manner. However, these proceedings under the Planning Act are separate and distinct from expropriation proceedings under the Expropriations Act, and if the Tribunal is called upon to consider contentious issues relating to the Draft Plan conditions, such jurisdiction, if it exists, would arise in relation to those Conditions and the Planning Act and not the Expropriations Act.

52Ultimately, and returning to the initial conclusion reached by the Tribunal, whether there has been an expropriation in the manner provided for under the Expropriations Act, the Subject Lands nevertheless still remain under the ownership of the Claimant. As was the case in the White Star decision, there has been no actual taking of the Owner’s Subject Lands by the City or acquisition of the Subject Lands by the City through amicable negotiation. Without an actual “taking” it is not possible for the Claimant to claim a right to compensation under s. 30 of the Expropriations Act in these circumstances.

THE THIRD ISSUE – THE TRIBUNAL’S AUTHORITY TO DETERMINE JURISDICTION – HOW CAN THE DISPUTE BE RESOLVED

53The Tribunal acknowledges the guidance provided by the Court in the decisions cited by the Claimant in argument: Goldlist Properties Inc. v. Toronto (City) (2002 CarswellOnt 3965, Greater Toronto Airports Authority v. Clergy Properties Ltd. [1997] O.J. No. 6526, and 1386146 Ont. Inc. v. 2520650 Ont. Inc. et al., 2022 ONSC 5277. These, and other decisions of the Divisional Court or Court of Appeal, have confirmed that the Tribunal, as part of its mandate, has the power to make inquiries and decide the scope of its jurisdiction in a proceeding that is before it. The Tribunal has done that in this Decision.

54In the Tribunal’s view the Claimant’s submissions on this Motion have somewhat “blurred the lines” between the planning proceedings giving rise to the Claim, and the legislative regime of the Expropriations Act governing the Claim. In doing so the Claimant may have failed to account for the very specific nature of the proceeding it has brought before the Tribunal under the Expropriations Act when asking that the Tribunal alternatively decide “land valuation issues” related to cost-sharing agreements intended to facilitate development under the Planning Act. The Tribunal has made its findings as to the scope of its jurisdiction in the Claim before the Tribunal under the Expropriations Act and found that it is lacking.

55In oral argument of the Motion, counsel for the Claimant has expressed his client’s understandable frustration in finding a means to deciding the singular issue to be resolved in order that this development can move forward.

56So how is the dispute over the amount to be paid by the City to the Claimant to be resolved? Is this a matter for the Superior Court to decide or will the Tribunal have jurisdiction to decide the value of the land under the still-open Planning Act proceeding and the Condition of Draft Plan approval that remains unresolved? Can the Tribunal alternatively consider a claim for injurious affection to settle the dispute which the Claimant has now raised as an additional option in oral argument of the Motion?

57The Claimant, in its submissions suggests that the Superior Court may be required to determine the unresolved dispute. That is one option.

58The City has suggested in its Reply that the Conditions of Draft Plan Approval in Tribunal Case File No. PL101121 (the “Subdivision File”) may require clarification and interpretation from the Tribunal as a result of the disagreement between the Parties. The Claimant acknowledges this alternative of moving before the Tribunal to have the value of the Subject Lands arbitrated by the Tribunal under the Planning Act File but has raised the question of jurisdiction

59The option of amending the Claim in this proceeding to advance a claim for damages for injurious affection under the Expropriations Act has also been suggested as an option to the Claimant. With the findings of the Tribunal in this Decision, and considering s. 22(1) of the Expropriations Act, it remains to be decided by the Claimant as to whether the Tribunal will have jurisdiction to consider a claim for injurious affection relative to the value of the Subject Lands which are the subject of the Draft Plan Condition, and arising from the resolution of the Subdivision application and Appeal.

60The Claimant is proposing a binary approach to achieve a solution to resolving the dispute before the Tribunal: it is asking that the Tribunal consider making an ultimate finding, and an Order, within this Motion, that it has the jurisdiction to determine the market value of the Subject Lands under the Planning Act in Case File No. PL101121; and it is requesting that the Claim in OLT-22-003809, instead of being dismissed, be held in abeyance to permit the amendment of the pleading to include a claim for injurious affection if jurisdiction under the Planning Act is declined.

61The Tribunal is not able to decide whether the Tribunal might have the ability to decide the market value within the prior planning proceeding as the City suggests. At this point no formal request has been made to the Tribunal to hear submissions and determine the value of the Subject Lands under the prior Orders in Tribunal Case File No. PL101121. The Panel has not been provided with any precedent or authority as to prior decisions nor received submissions as to the ability of the Tribunal to make a finding as to the value of lands, or order financial compensation, under s. 51 of the Planning Act.

62It is not a given that the Tribunal’s jurisdiction to interpret draft plan conditions to a subdivision, and decide related issues, will necessarily imbue the Tribunal with the broad discretion to resolve private agreements between a developer and a municipality as to the terms of the transfer of lands or matters of contract relating to the determination of the cost of acquisition payable by the municipality. The Tribunal will require full argument and authority to support any submission that it has the authority to fix financial compensation for the conveyance of land under Part VI of the Planning Act in relation to a Draft Plan Condition.

63The Tribunal is not lightly sidestepping the question of the Tribunal’s jurisdiction to decide the dispute. The Tribunal cannot simply create appeals or proceedings of its own accord or make summary determinations of jurisdiction without a proper motion before it. To summarily decide that the Tribunal will determine the value of the land payable to the City within the four corners of this Motion would, with one swift stroke, affirm the Tribunal’s jurisdiction to determine the valuation of lands to be transferred under previously approved Draft Plan Conditions. That is, in the Tribunal’s view, far from certain based upon the peripheral submissions passed along in this Motion, nor is it appropriate that such a remedy be granted in the context of the City’s Motion.

64What is necessary is to have the issue of the Tribunal’s jurisdiction on this different subject properly before it. The Tribunal is of the view that a question as to the scope of the Tribunal’s jurisdiction is a significant issue to place before it, and must not be treated casually, but rather, with the benefit of adequate supporting materials, authorities and jurisprudence to decide the issue.

65Accordingly, if the Claimant wishes to bring the matter before the Tribunal under the Subdivision file, a motion will be required to decide whether the Tribunal possesses the authority to decide the market value of land that must be transferred to the City, as a Condition of Draft Plan approval, either by explicit and express jurisdiction under the Planning Act, or, as the Claimant submits, by “necessary implication as a result of other functions that the Tribunal has been assigned by the legislature”. It will remain for the Tribunal to determine the question of jurisdiction in that event.

66The Tribunal has considered the Claimant’s submissions as to the increased cost and delay to the Parties if it does not immediately accept jurisdiction within this Motion. The Tribunal is mindful of the need to minimize costs. The Tribunal acknowledges the Claimant’s submission that the failure of the Tribunal to accept jurisdiction over the Claim may not be the most economical or efficient investment of judicial resources, and might require the Claimant to seek relief in the Superior Court (or in an alternate proceeding before the Tribunal directly relating to the Draft Plan Conditions to the approved Plan of Subdivision). Despite these objectives and concerns as to costs, the Tribunal is nevertheless obligated to recognize its jurisdictional constraints.

67The Tribunal is also mindful of the delay that may arise if the matter of the value of the Subject Lands remains undetermined. This too, while always a relevant and important consideration for the Tribunal in fulfilling its adjudicative mandate, does not prevail over the importance of accepting jurisdiction over only those matters which are identified pursuant to the Tribunal’s home statute and the guidance provided by the Court.

68In summary the Claimant’s arguments as to costs, delay, additional proceedings and poor use of adjudicative/judicial resources are noted but these concerns cannot override the necessity of deciding jurisdiction. Directives of the Tribunal may assist moving this unresolved dispute forward to a conclusion.

DISPOSITION

69Section 19(1) of the Ontario Land Tribunal Act provides that the Tribunal, on motion, may dismiss a proceeding without a hearing if the Tribunal is of the opinion that the proceeding has no reasonable prospect of success. In this instance, for the reasons set out in this Decision, as the Tribunal has no jurisdiction to determine the value of the Subject Lands under the powers granted to it under the Expropriations Act, there is no reasonable prospect of success. Section 4.6(b) of the Statutory Powers Procedure Act similarly supports the dismissal as the Claim under the Expropriations Act is outside the Tribunal’s jurisdiction.

70The Tribunal will accordingly grant the City’s Motion. The Claimant’s Claim for the market value of the Subject Lands commenced under this Case File No. 22-003809 should be dismissed.

71However, the Tribunal accepts the submissions of the Claimant and finds that it is also necessary, for the expedient and orderly adjudication of the Subdivision Proceeding, to finally resolve the dispute of the value of the Subject Lands, and in doing so, the singular Condition to be resolved by the Parties.

72The Claimant and the City have, between them, alluded to three options to accomplish this final resolution, but are vague as to which route to follow and uncertain as to the Tribunal’s jurisdiction to adjudicate two of those options.

73To summarize, those three options are: (1) through the amendment of the Claimant’s pleading to advance a claim for injurious affection before the Tribunal under the Expropriations Act; (2) by request for directions or by motion within the Subdivision Proceeding, requiring the Tribunal to address the outstanding Condition of Draft Plan Approval, but more specifically to fix the value of the Subject Lands; and (3) by way of a proceeding to the Ontario Superior Court of Justice. Option 1 must obviously be considered in the context of the findings of the Tribunal contained in this Decision.

74In order to assist in the orderly case management of this long outstanding proceeding and dispute, the Tribunal will, in finally determining and dismissing the Claimant’s Claim as it is currently before the Tribunal, provide binding Directives to move the unresolved dispute forward to adjudication before the Tribunal, if it has jurisdiction, or adjudication before the Ontario Superior Court of Justice. The route will be at the election of the Claimant, but subject to the determination of the jurisdiction of the Tribunal in the manner set out in the directives in the Order.

ORDER

75The Tribunal Orders that the City’s Motion is granted. Upon the findings herein and having determined that the Tribunal does not have jurisdiction under the Expropriations Act to adjudicate the Claimant’s claim seeking compensation for the market value of its interest in lands known as Part of Lot 8, Concession 4, in the former Township of East Flamborough in the City of Hamilton and identified on the Plan of Subdivision as Block 10 (the “Subject Lands”) as the claim is advanced in its Notice of Arbitration and Statement of Claim, the claim is hereby dismissed subject to the additional directives of the Tribunal provided.

76The Tribunal will stay the administrative closure of its file for a period of 30 days following issuance of this Decision and Order and notwithstanding the dismissal of the Claim as framed in its pleading, the Claimant may, if it determines it is warranted based upon the findings of the Tribunal herein, amend the Notice of Arbitration and Statement of Claim, to claim damages for injurious affection under the Expropriations Act. If no amendment of the pleading is made within 30 days, the proceeding will be deemed to have been determined on a final basis and the Tribunal’s file will be closed. For clarity, the Tribunal’s dismissal of the Claim is a final determination of the Claim and the stay of closure of the Tribunal’s file is for the purpose only of allowing the Claimant to amend its pleading for the alternative claim for injurious affection.

77If the Claimant intends to amend its Claim in this proceeding and/or if the Claimant provides notice to the City, copied to the Tribunal, within 30 days following issuance of this Decision and Order that it intends to bring the appropriate request or motion before the Tribunal in Tribunal Case File No. PL101121 (“Subdivision Proceeding”) for the proceeding under subsection 51(34) of the Planning Act to decide the value of the Subject Lands the following directives shall apply:

(1) Upon receipt of such notice from the Claimant the Tribunal, of its initiative, will convene a Motion for Directions to determine the jurisdiction of the Tribunal to adjudicate a claim for injurious affection under the Expropriations Act, and/or to determine the jurisdiction of the Tribunal to determine the amount to be paid for the value of the Subject Lands intended to be transferred as a Draft Plan Condition to the Tribunal’s approval of the Plan of Subdivision in the Subdivision Proceeding;

(2) The Tribunal will provide exchange dates for the service and filing of Motion materials and directives for the filing of Motion Materials. The City shall first file its Motion Record; the Claimant shall respond; and the City shall provide its Reply. The Tribunal may further direct the delivery of factums by the Parties;

(3) In the event the Tribunal convenes the Motion for Directions based upon the elections of the Claimant, such further procedural and case management directives as are necessary may be provided before or following the hearing of the Motion for Directions.

(4) In the event the Claimant elects not to amend its pleadings, or to bring the request or motion before the Tribunal in the Subdivision Proceeding, and if it brings an alternative proceeding before the Ontario Superior Court of Justice, it shall forthwith advise the City and the Tribunal and further case management of the Subdivision Proceeding may then be directed or stayed at the discretion of the Tribunal as the alternative proceeding is before the Court.

(5) If necessary, the Parties may request further case management with respect to the remaining proceedings before the Tribunal.

(6) The Tribunal remains available to consider a request for mediation of the outstanding issue of the value of the Subject Land upon the request of the Parties.

78For clarity, as the Motion to Dismiss has been finally determined by the Tribunal, the Panel Member is not seized with respect to any matters relating to the Procedural Directives contained herein.

“David L. Lanthier”

DAVID L. LANTHIER

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.