Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 26, 2023
CASE NO(S).: OLT-22-004543
PROCEEDING COMMENCED UNDER subsection 6(2) of the Expropriations Act, R.S.O. 1990, c. E.26
Claimant: 3930149 Canada Inc.
Expropriating Authority: City of Ottawa
Property Address: 8899 Jeanne D’Arc Boulevard North
Municipality: City of Ottawa
OLT Case No: OLT-22-004543
OLT Lead Case No: OLT-22-004543
OLT Case Name: 3930149 Canada Inc. v. Ottawa (City)
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Motion By: City of Ottawa
Purpose of Motion: Request for Determination / Directions
Subject: Expropriation – Hearing of Necessity
Municipality: City of Ottawa
Heard: December 13, 2022 by Video Hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| City of Ottawa | L. Robinson, E. Blanchard |
| 3931049 Canada Inc. Denise Menard |
R. Aburto, J. Minnes, J. Chen R. Aburto |
MEMORANDUM OF ORAL DECISION DELIVERED BY G. BURTON ON DECEMBER 13, 2022 AND ORDER OF THE TRIBUNAL
1This is a memorandum of an oral Decision given on a Motion by the City of Ottawa (“the City”) on December 6, 2022. The Motion was brought following a request under subsection 6(2) of the Expropriations Act (“the Act”) by 3930149 Canada Inc. (“393 Inc.” or “the Requestor”, the usual term) for a so-called Hearing of Necessity on a proposed expropriation by the City. The City made a Motion to the Tribunal prior to the Hearing on the merits, to determine two issues, principally: 1., whether the Requestor, which called itself “the Claimant” in its motion materials, had standing to make the request for Hearing of Necessity in the circumstances; and 2., the degree of pre-Hearing disclosure required by the Act.
Background
2The City’s evidence was provided by the Affidavit of Danielle Rozon, Law Clerk to Counsel for the City, who has long been involved in the proposed expropriation. The City had passed By-law No. 2022-117 on June 8, 2022, proposing the partial expropriation of three parcels to facilitate continuing construction of the Stage 2 Ottawa Light Rail Transit System. A permanent easement was proposed over the most easterly parcel, being Parcel 1 on drawing 18695-PRP_089b.dgn, now Plan 4R-35087, deposited Nov. 25, 2022 (see Attachment 1). This parcel is known municipally as 8899 Jeanne D’Arc Boulevard North, Orléans, in the City of Ottawa. The City had determined that a permanent drainage easement is required there for formalizing drainage rights within an existing watercourse.
3By-law No. 2022-117 had also included proposed expropriations of portions of two other parcels, each separated by about 20 kilometres from the subject parcel in Orléans. A temporary construction easement and road widening were planned on the other parcels. The request by 393 Inc. for the present Hearing included reference to all three parcels in the By-law. The City received no other requests for Hearings in respect of other property interests identified in the By-law and the published Notice.
4Notice of the proposed expropriation had been served on all registered owners on July 25, 2022, as required by subsection 6(1) of the Act. This included the registered owner of the subject parcel at 8899 Jeanne D’Arc Blvd., Ms. Denise Bedard.
Issues
Issue 1 – Is the Requestor (so-called “Claimant”) a person entitled to ask for the Hearing of Necessity?
5Mr. Aburto also requested Party status for the registered owner Ms. Bedard. The City indicated its consent to this, to be provided only after the status of the Requestor 393 Inc. has been decided.
6The Act determines who can make a request for the hearing. It is limited to an “owner” who receives notice [section 6(2)]. 393 Inc. claims that it is an owner as defined in the Act by operation of law and is thus entitled to make the request. The City challenged the request, concluding that it had not proved that 393 Inc. was an owner.
7Subsection 6(1) requires that the Notice of Application to Expropriate be served upon all “registered owners” of the Property, as defined in the subsection 1(1) of the Act. Thus, the City served Ms. Menard, the owner shown on the parcel register, as well as the Hydro Electric Power Commission of Ontario, owner of a registered easement on the Property.
8However, section 6 of the Act permits notice of a proposed expropriation to be given in another way: by publication in newspapers of general circulation in the City. This was done by the City on July 23, 2022 (Exhibit 1, Tab 2B and C).
9Subsection 6(2) then permits: “Any owner of lands in respect of which notice is given under subsection (1) who desires a hearing shall so notify the approving authority in writing” within a specified period of time. This reference to “owner” would include anyone who qualifies as an owner who receives notice by publication in a local newspaper.
10Section 1 of the Act defines:
a. “land” as including: “…any estate, term, easement, right or interest in, to, over or affecting land”,
b. an “owner” as including: “…a mortgagee, tenant, execution creditor, a person entitled to a limited estate or interest in land, a guardian of property, and a guardian, executor, administrator or trustee in whom land is vested”, and
c. “registered owner” as “…an owner of land whose interest in the land is defined and whose name is specified in an instrument in the proper land registry or sheriff’s office, and includes a person shown as a tenant of land on the last revised assessment roll”. (Emphasis added – GB)
11393 Inc. admits that it received actual notice of the proposed expropriation via the newspaper publication (Exhibit 4, paras. 21 and 22). However, it must still fit itself within the definition in section 1b. as an owner before it can request a Hearing of Necessity. It claims that it is qualified to request a hearing as an owner in law, as it had entered into an Agreement of Purchase and Sale (“APS”) of the subject parcel with the registered owner, Ms. Bedard. It provided case law which found that such an agreement was an enforceable interest, making 393 Inc. an owner in law (Toronto Area Transit Operating Authority v. Thomson Lumber & Building Materials Ltd., 1982 CarswellOnt 2025 [Ontario Land Compensation Board], para. 5.). It thus fit, said 393 Inc., within the statutory requirement in section 1b. above, as “a person entitled to a limited estate or interest in land”.
12However, 393 Inc. was unwilling to provide as proof a copy of the APS to the City, and claimed that the City was “on a fishing expedition”. The City countered that, without proof of a valid APS, the Requestor had no right to claim to be an owner. The City must examine the Agreement in order to assess its validity, to see whether in its opinion an interest in land has been created. This will enable the City to assess whether 393 Inc. is a proper Party to the expropriation and thus meets the requirement of due diligence. Whosoever in law is an “owner” must be determined, since an owner can not only request a hearing but also can share in compensation for an expropriation.
Issue 2 – Pre-Hearing disclosure required by the Act
13Evidence for the Requestor, 3930149 Canada Inc. on the Motion was provided by the affidavits of Jessica Chen, its Counsel, and by Marc Poirier, one of the principals (Exhibit 2, Tabs 2 and 3). Ms. Chen included a letter from Counsel for Denise Menard confirming an APS between Ms. Menard and 393 Inc. (Tab 2A). 393 Inc. claimed that it had refused to provide the APS to the City as it contained commercially sensitive information. Ms. Chen affirmed that, despite repeated requests, the City did not supply the “Supporting Documents” (so termed by 393 Inc. – Exhibit 2, para. 4). This phrase was further elaborated in an earlier letter of August 9, 2022 from Mr. Aburto as “any reports or studies that support and justify these proposed plans” (Exhibit 2, Tab B). In para. 7, Ms. Chen used the phrase “justification for the expropriation of the Property”.
FINDINGS AND OPINION
Party Status
14The registered owner, Ms. Bedard, was given Party status, as requested. Her interest in the parcel may have been transferred to the Requestor, 393 Inc., by an APS – a finding that only a court could make definitively. Nonetheless, she should retain Party status here until the Hearing of Necessity has been resolved.
Disclosure of APS to the City
15The City must have the opportunity to reach its own conclusion on the validity of the APS, upon which the Requestor has founded its claim and the request for the Hearing. The City called it a core document for establishing ownership, and thus, the proper Parties. The Tribunal accepts the City’s argument that both the Tribunal Rules of Practice and Procedure and the Rules of Civil Procedure protect sensitive information from disclosure. Therefore, the document, redacted of commercially important material but preserving the operative legal content, shall be disclosed to the City within 15 business days of the release of this Decision.
16The Tribunal will make the determination as to whether 393 Inc. has made a proper request for a hearing upon receipt of the City’s opinion on the validity of the APS to transfer legal ownership.
17393 Inc. had also asked the Tribunal to strike clause 14a. of Ms. Rozon’s Affidavit, which, it claimed, referred to a without-prejudice discussion. The Tribunal notes that verbal discussions between Counsel are ubiquitous and are in any event privileged if they involve settlement. The Tribunal therefore finds that there is no need to strike this reference, which seems to involve only a request for documents.
Scope of the Hearing – Disclosure Requirements
18As mentioned, the City argued that no further disclosure of supporting documents can be made until it is determined whether 393 Inc. is an owner in law. Subsection 7(2) of the Act states who is a party; it is restricted to owners as defined (including, as seen above, “a person entitled to a limited estate or interest in land” – section 1 b). The disclosure requirement limits it to parties. The Tribunal agrees that valid ownership of the subject parcel must be determined before the scope of a Hearing and proper disclosure can be decided.
19As also mentioned, a person may merely see the Notice in a newspaper and then request a Hearing, but they must bring themselves within the definition of “owner” [s. 6(2)]. The Tribunal finds that the Requestor did see the Notice in a newspaper, as stated by the Requestor, but must still qualify as an “owner” before its Hearing request is valid. The Requestor admits that it wrongly included the two other parcels in the By-law in its request, claiming that this was due to the City’s delay in providing the By-law. There is little rationale or excuse for this claim. 393 Inc. also admits that it saw the printed Notice. This means that it did have actual notice of the location of the three parcels, since the descriptions were provided therein. The site drawings labelled East (the subject, see Attachment 1) and West were available upon request, as stated.
20The City has no obligation to provide more than the Act requires – that is, a Notice of Grounds for the proposed expropriation of the subject parcel on which it intends to rely at the hearing, and the inspection of any documents, including maps and plans, that it intends to use at the Hearing [7(4) (a) and (b)].
21It appears that the Requestor has now accepted a limitation of the disclosure requirement to the drainage easement alone, and not to the two other proposed expropriations included in the By-law. Ms. Rozon’s evidence was that multiple property interests are often included in one Bylaw and Notice. 393 Inc. withdrew references to the other two parcels from its Hearing request.
22Respecting the allegation by the Requestor of delay on the City’s part, the Tribunal notes that an expropriating authority has a real interest in having a Hearing of Necessity resolved quickly, in order to proceed with construction of the public work in question. This is especially true of the much-delayed Ottawa LRT. The City would not, therefore, place procedural obstacles in the path of objectors, as claimed here. Counsel for the Requestor used terms, such as the City’s “egregious” conduct, which are not at all justified in the circumstances.
ORDERS
233930149 Canada Inc. will provide to the City of Ottawa a copy of an Agreement of Purchase and Sale entered into with Ms. Denise Bedard, redacted, if necessary, only to eliminate information for which a commercially sensitive privilege is claimed, within 15 days of the date of this Decision.
24The City of Ottawa shall notify the Tribunal of its acceptance or rejection of the validity of the Agreement of Purchase and Sale. If accepted, a Hearing date will be set.
“G. Burton”
G. burton
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.
ATTACHMENT 1