Dean Adams cob Lube N Go v. Waterloo (Region), 2023 CanLII 78863

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: August 24, 2023

CASE NO(S).: OLT-22-002291 (Formerly LC180016)

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

Claimants: Dean Adams cob Lube N Go

Respondent: Regional Municipality of Waterloo

Subject: Land Compensation

Property Address/ Description: 1138 King St E

Municipality: Regional Municipality of Waterloo

OLT Case No.: OLT-22-002291

Legacy Case No.: LC180016

OLT Lead Case No.: OLT-22-002291

Legacy Lead Case No.: LC180016

OLT Case Name: Dean Adams cob Lube N Go v. Waterloo (Region)

Heard: March 7, 8, 9,-10, 2023, and May 19, 2023, by video hearing

APPEARANCES:

Parties	Counsel
2350685 Ontario Inc. cob Lube N Go (“Claimant”)	Mark Grossman
Regional Municipality of Waterloo (“Region” or “Respondent”)	Richard Brookes

DECISION DELIVERED BY William R. Middleton AND ORDER OF THE TRIBUNAL

Link to Final Order

PART ONE: INTRODUCTION

1The Claimant commenced an action under the Expropriations Act (“EA”) for compensation for injurious affection arising from road construction which occurred adjacent to or very nearby the Claimant’s place of business located at 1138 King St East, Kitchener, Ontario (“Premises”). The Claimant operated an oil change and vehicle repair business at those Premises which it leased from the owner which is not a Party to this action and has not pursued any claim against the Region. No expropriation of the Premises was carried out by the Region.

2This matter proceeded to a hearing for 4 days from March 7 to March 10, 2023, inclusive. Final oral argument took place on May 19, 2023, a date scheduled at the request of both Parties’ counsel.

3The materials before the Tribunal were:

(a) Joint Document Brief, comprising 285 separate tabs, in four volumes;

(b) Agreed Statement of Facts;

(c) Witness Statement (“WS”) of Jacques Couture;

(d) WS of Derick Finn;

(e) WS of Phil Bauer;

(f) Regional Municipality of Waterloo Traffic Counts;

(g) CV for Terry Prechel;

(h) Report of Glenn Tautrims, November 21, 2022;

(i) Complete transcripts of all oral testimony from the Hearing;

(j) Dean Adams c.o.b. Lube N’ Go Written Submissions, comprising 15 pages;

(k) Written Submissions of Regional Municipality of Waterloo, comprising 163 pages including all caselaw authorities; and

(l) Miscellaneous additional jurisprudence.

PART TWO: THE CLAIM: INJURIOUS AFFECTION ONLY

(i) The Claimant’s Damages Claims Are Untenable

4The claim is under section 21 of the EA which provides: “21 A statutory authority shall compensate the owner of land for loss or damage caused by injurious affection. R.S.O. 1990, c. E.26, s. 21.”

5Under subsection 1(1) of the EA, the Claimant, as a tenant, is deemed to be an owner:

“owner” includes 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.

6As pointed out by the Claimant’s counsel, subsection 1 (1) of the EA further defines “injurious affection” where no land is acquired by the Respondent as:

…where the statutory authority does not acquire part of the land of an owner,

(i) such reduction in the market value of the land of the owner, and

(ii) such personal and business damages, resulting from the construction and not the use of the works by the statutory authority, as the statutory authority would be liable for if the construction were not under the authority of a statute…

[above emphasis added]

7Therefore, in this case, the Claimant alleges that:

…the construction performed by the Respondent in 2016 and 2017 on King Street adjacent to the Applicant’s premises and to Ottawa Street and Charles Street in the City of Kitchener is the basis for the Applicant to obtain compensation for the interruption and interference of the Applicant’s business…

8Thus, the obvious key to the Claimant’s damages claim was the requirement that he prove that the road construction conducted by the Region actually caused a demonstrable business loss. Unfortunately, and unusually, the Claimant chose not to tender objective independent expert evidence on this crucial aspect.

9At the hearing, the Claimant’s counsel attempted to have Mr. Terry Prechel qualified to provide oral opinion evidence to the Tribunal relating to a three page statement he prepared concerning the alleged business loss claims of the Claimant. However, this was opposed by the Region’s counsel and was unsuccessful because Mr. Prechel did not possess the necessary professional credentials or experience to offer such opinion evidence. This point was conceded by counsel for the Claimant in the following passages from the hearing:

…COUNSEL: He has an opinion about growth in the business, candidly, candidly I don’t, I don’t think he…[Mr. Prechel]… has the expertise to provide you that opinion….TRIBUNAL:.. So do I understand you correctly that you concede that Mr. Prechel is not qualified to give an opinion with respect to going left, well the last two columns to the right, the loss, growth prediction and the growth rate trajectory column? COUNSEL: don’t think he does. I don’t think he does, but I think it’s a useful exercise to, in understanding the loss, to look at projections. But I don’t think he can opine and say well this business would of made [sic] that money…

10In light of the passages set out in paragraph [9] above and the submissions made by the Region’s counsel, the Tribunal did not qualify Mr. Prechel to provide opinion evidence on the Claimant’s alleged business losses and declined to accept his three-page written report on the same basis.

11Therefore, on the business loss claim, the Tribunal was left with only the obviously self-interested testimony and ‘analysis’ offered by the Claimant’s principal, Mr. Adams, and various business records of the Claimant. In final argument, the Claimant’s counsel submitted that the totality of that evidence proved a loss as follows:

The Gross Revenue Loss Calculations which are attached hereto shows a dramatic decline of sales in 2016 and 2017. Mr Adams further testified that the damage from the 2 years of continuous interruption impacts the buying habits of customers as they simply find other places with less traffic and construction impediments to obtain their vehicle repairs. This cascading year to year affect led to a significant reduction in business which carried on to 2018 and 2019 until the start of the COVID crisis when the entire economy was impacted.

12There were in fact no “Gross Revenue Loss Calculations” attached to the Claimant’s Final Argument, but it was set out in a separate document forming part of the record at the hearing and now appended to this Decision as Attachment A. It appears to suggest ‘gross’ lost year-over-year revenue for the period 2016 to 2019 of $723,786 and ‘gross lost growth’ of $440,549 for the same period, presumably based on the analysis and records provided by the Claimant, for an overall ‘grand total’ loss of $1,164,335.

13On the other hand, the final written argument of the Claimant’s counsel contains different loss calculations. In paragraph 37 of that submission, it is stated: “It is the applicant's position that its claim for business losses is the reduction in gross profit year over year from the 2015 year which is the last year of business before the commencement of construction.”

14Then, in the following six paragraphs of the Claimant’s counsel’s final argument it is stated:

39. In 2015 the Applicant’s gross profit was $369,702 which is the base year

40. In 2016 the gross profit fell $302,238.42 creating a single year loss of $67,464 assuming no expected increase in sales despite the Applicant’s history of a 5% business increase year over year.

41. In 2017 the gross profit fell to $299,237 creating another single year loss of $70,465.

42. In 2018 the gross profit fell to $270,871 creating another single year loss of $98,831.

43. In 2019 the gross profit fell to $239,123 creating another single year loss of $31,748.

44. These losses are single year losses year over year with the Cost of Goods Sold (COGS) category subtracted. Individual year losses only total $268,508.00 This number precludes the established 5% growth rate that was lost and the cumulative year losses from the beginning of the ordeal until the end of the 5-year window. The numbers for that total are located on the Applicants Document Financial Analysis 03062020. Filed in the Agreed Facts Document. Considering the COGS reduction from the gross lost income total as previously filed would be circa $756,817.00.

[above emphasis added]

15Unfortunately, the Tribunal found it very difficult to fully comprehend the total business loss claim being proposed by the Claimant’s counsel. On one hand, the “Gross Revenue Loss Calculations” described above in paragraph [12] and in Attachment ‘A’ describes a total claim of $1,164,335. Yet, the outcome of the outline set out in the 6 paragraphs contained in the Claimant’s final written submissions, as reproduced above in paragraph [14], appear to propose a total claim of $756,817.00.

16In any event, the underlying theory of the Claimant’s case was stated in final argument by counsel for the Claimant as follows: “It is further submitted that the only evidence led to explain the reduction in business from 2015 through 2019 was the effects of the construction conducted on King Street and Ottawa St.”

17The Claimant’s principal Mr. Adams provided viva voce testimony concerning the Region’s road construction project adjacent to the Claimant’s business operations as did Mr. Dave Cowgill, a former employee of the Claimant. While the Tribunal has no doubt that at various times there was considerable activity in front of the Claimant’s business location, the totality of the evidence does not support an allegation that the construction created a constant, frequent or pervasive impairment of access to this location or amounted to a nuisance and interference with the Claimant’s business for which damages are recoverable in law. It is also of importance to note that the Agreed Statement of Facts filed by the Parties contains approximately 25 paragraphs detailing concerns expressed by the Claimant and corresponding steps quickly taken by the Respondent to address them.

18To support its causation and liability theories, the Claimant’s counsel relies on three cases: Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 (“Antrim”); Rosenhek v. Windsor Regional Hospital (2010) 2010 ONCA 13, O.J. No. 129 (CA) (“Rosenhek”); and R. Jordan Greenhouses Limited v. Grimsby (Town), 2015 CanLII 38802 (ON LPAT) (“Jordan Greenhouses”).

19The Tribunal will discuss the jurisprudence described in paragraph [17] in Part Three below.

(ii) The Region’s Position: The Claimant Failed to Present Credible Evidence to Support the Quantification of the Injurious Affection Claim

20Unsurprisingly, the Region in final argument completely rejects the quantification of the Claimant’s injurious affection claim as well as the theory that it was caused solely by the Region’s road construction project – or that the Region can be held legally responsible for the claimed losses. Counsel for the Region points out that In November 2012, the Claimant – which through its principal Mr. Adams had no previous experience owning and operating a lube or auto mechanical business and was not a licensed mechanic - purchased out of bankruptcy the Lube N’ Go trade name and the assets at the two locations of 1215 Victoria Street North, Kitchener and the Subject Property for the nominal sum of $10,516. The Claimant later closed the Victoria Street location due to its lack of success.

21In contrast to the Claimant, the Region tendered a report and testimony from an expert in business loss valuation, Mr. Glenn Tautrims CPA, CA, CBV, who was qualified without objection from the Claimant’s counsel to provide opinion evidence on matters related to accounting, damage quantification and business valuation. Mr. Tautrims has almost 30 years experience in these professional disciplines and has provided analysis in many expropriation proceedings on behalf of both claimants and expropriating authorities.

22The Tribunal found Mr. Tautrims to be a knowledgeable, articulate and persuasive witness and his evidence to sound, cogent and convincing. The Tribunal preferred and accepted Mr. Tautrims’ evidence wherever it critiqued and contradicted the oral evidence and written accounting and other records tendered by the Claimant. Moreover, Mr. Tautrim’s evidence and conclusions were not successfully challenged during cross-examinations. The Tribunal also disagrees with the unsupported criticisms of his evidence contained in the final written and oral arguments of counsel for the Claimant.

23Mr. Tautrims, in his expert report and his oral testimony at the hearing, provided the following findings and opinions:

(a) He reviewed all documentation provided on behalf of the Claimant, including but not limited to: tax returns for the for the fiscal years ended September 30, 2015 to 2018; the internally prepared Profit & Loss statements for the King Street location for the period December 1, 2012 to September 30, 2013 and the years ended September 30, 2014 to 2020; Internally prepared Balance Sheets for the King Street location as at September 30, 2013 to 2020; Monthly sales for the period January 2013 through May 2020, provided in the files 3 YR Rev 2013-2015, 3 YR Rev 2016-2018, 3 YR Rev 2017-2019 and 3YR Rev 2017-2020; Claimant’s HST Return Summaries for the period October 1, 2017 to June 30, 2021; Claimant’s payroll register for the period January 1, 2015 to December 31, 2019; the Claimant’s answers to undertakings arising from examinations for discovery; and Publicly available information including: Information with respect to the COVID-19 pandemic and Images of the Leased Property from Google Maps;

(b) The Claimant entered into the Purchase Agreement to purchase the assets of the Lube N Go business at the end of November 2012 for $10,516, with payment of the purchase price to be made to the Canada Revenue Agency payroll withholdings account of the vendor – no other payment was made for the acquisition of this business;

(c) At the time of the purchase, Lube N Go operated from two locations: the Leased Property and 1215 Victoria Street North in Kitchener. The Claimant closed the Victoria Street location in May 2015. Mr. Adams indicated that the Victoria Street location was not viable as the rent was too high, and it had too much square footage;

(d) The Lease for the Leased Property was assigned to the Claimant on December 5, 2012. The Lease has an expiry date of February 28, 2022, with two five-year renewal options. There are two entrances to the Leased Property, one from King Street East, and the other from a municipal laneway at the back of the Leased Property, running between Ottawa Street North and Sydney Street North;

(e) Construction activities related to the Region’s rapid transit system (the “LRT Project”) impacted traffic on Ottawa Street near the Ottawa Street and King Street intersection in 2016. The Region commenced construction of the King Street Reconstruction from Ottawa Street to Montgomery Road for the replacement of old municipal water mains and sewers (the “King Street Project”) at the end of April 2017. The King Street Project included three phases, with the Leased Property included in the Phase I area. Phase I paving was completed by the end of July 2017 with King Street, within the Phase I area, reopening to traffic in mid-August 2017;

(f) On March 17, 2020, a state of emergency was declared in Ontario related to the COVID-19 pandemic. The Ontario government issued a number of emergency orders in an effort to stop the spread of COVID-19, including the closure of nonessential retail establishments, and the implementation of restrictions on retail establishments once they were permitted to reopen. With the ongoing COVID-19 pandemic there have been various periods with stay-at-home orders in effect and the requirement for employees to work remotely if possible. Retail establishments had to endure various closure periods, and operating restrictions, depending on the region in which they operate, from March 2020 through the spring of 2022;

(g) The corporate income tax returns include the operations of the Lube N Go operating at both the Leased Property and the Victoria Street location for the fiscal years 2014 and 2015. The Claimant has indicated that the internal financial statements for the Victoria Street location are not available. The Internal King St. P&L therefore cannot be reconciled to the corporate income tax returns for the 2014 and 2015 fiscal years. In addition, the Claimant has indicated that “All payments for both locations were made from the Victoria St side of the business until 2015. Then all accounting was moved back to just the one location.” Accordingly, the Internal King St. P&L for the 2013 to 2015 fiscal periods may not fully reflect the King Street location’s operations and until proven otherwise are not considered reliable;

(h) The comparison of the corporate income tax returns to the Internal King St. P&L for the years 2016 to 2018, however, indicates that they do not agree. We have summarized the differences between the two for certain line items on Schedule 2. Without a reconciliation of the differences between the corporate income tax returns and the Internal King St. P&L, the reliability of the internally prepared financial information provided during these years must be questioned;

(i) The 2016 corporate income tax return includes a prior period adjustment to the retained deficit in the amount of $365,742. There are no details of what the prior period adjustment relates to. In addition, the opening retained deficit in 2017 does not agree to the closing figure in 2016, with a difference of ($34,370). Adjustments made to retained earnings (deficits) normally indicate errors in previous years’ reported results calls into question the reliability of the financial information provided. Without details of the adjustments being made, we are not able to determine whether they relate to the King Street location;

(j) The revenues reported on the Claimant’s HST Returns do not agree with the revenues reported on either the corporate income tax return or the Internal King St. P&L in fiscal 2018, and do not agree with the revenues shown on the Internal King St. P&L in fiscal 2019 or 2020. The HST payable balance on the Internal King St. B/S continued to grow from ($4,770) in 2013 to $108,766 in 2019, Schedule 5, despite the Claimant indicating that all HST has been paid. The differences between revenues reported on the HST return and the Internal King St. P&L, the HST payable balance on the Internal King St. B/S and the Claimant’s explanation that the accounting system is cumbersome creates further concern regarding the reliability of the financial information provided from the system, i.e. the Internal King St. P&L and B/S;

(k) The Claimant provided a number of 3-year revenue analyses which provide monthly revenue figures for the period January 2013 through June 2021 and it was noted that the figures provided for the 2018 fiscal year differed between the analysis provided for 2016-2018 and the analysis provided for 2017-2019, as detailed on Schedule 3. As it is unclear how these historical revenue figures would have changed between analyses, the reliability of the financial information provided must be questioned;

(l) A number of unusual items on the Internal King St. B/S, including a continuing increase in the accounts receivable, inventory and accounts payable balances in the period 2015 to 2020, despite decreased activity shown in the King St. P&L, and a large receivable balance from Victoria St. The Claimant has indicated that due to certain fees not being entered into the system correctly the inventory does not exist, and that the Victoria St. receivable is not collectable;

(m) Due to the errors and discrepancies discussed above, there are serious concerns as to the reliability of the Claimant’s financial information provided. Where there are discrepancies in financial information provided, it is typical to rely on corporate income tax returns, as tax returns usually reflect any required year-end adjustments made by a company’s accountant to internal bookkeeping and a company representative is required to certify the information provided in the corporate income tax return is correct. However, the Claimant has not prepared corporate income tax returns subsequent to fiscal 2018, and alleges it does not have sufficient information to reconcile the King Street location operations to the tax returns for fiscal 2014 to 2015. Accordingly, the preliminary analysis of the Claimant’s losses has been based on the Internal King Street P&L, B/S and monthly revenue analysis;

(n) A direct competitor, Economy Lube and Tire offered a special promotion of $19.95 for an oil change during the period under review which Mr. Adams noted put the “industry into turmoil”. The Leased Property is located almost midway between the Economy Lube and Tire locations in Kitchener and Waterloo. Mr. Adams indicated while he did not have the specific year that the promotion started, “we were still in Victoria Street because Meineke was chasing after that problem and it all but destroyed his business down the road there. People coming in looking for $19.95. You can't even put the oil in for $19.95.” Mr. Adams further stated that the Claimant never attempted to lower its prices to match the special offer and kept its prices the same. A review of the Economy Lube and Tire website indicates that this special price is still offered to date by both locations;

(o) The Region did not expropriate any portion of the Leased Property. The Claim alleges that the Claimant suffered injurious affection as a result of the Region’s construction, with damages estimated at $300,000, updated in answers to undertakings to $1,164,335;

(p) The King Street location’s revenues increased during the alleged construction period, with revenues increasing 19.4% during the five-month period April to August 2015, compared to the same months of the previous year. Revenues increased when compared to the same month of the previous year in four of the five months, decreasing slightly in August, by (2.4%). The King Street location’s total revenues in fiscal 2015, at $564,241, were 9.1% higher than the previous year. Accordingly, it does not appear that the Claimant was negatively affected by any construction on King Street East in the spring / summer of 2015;

(q) the King Street location’s revenues decreased during the period May 2016 to January 2017 by (5.8%), and by (8.1%) in April 2016, after construction was ongoing for approximately 1 week. Revenues during this period did not decrease consistently, increasing in some months and decreasing in others. The fluctuations in revenues compared to the same month of the previous year ranged from (25.6%) to 20.8%, with increases in 4 months and decreases in the other 6 months;

(r) While the overall revenues during the alleged Ottawa Street closure period decreased, the decrease of (5.8%), or (8.1%), is less than the decrease in the King Street location’s revenues in the period September 2015 to March 2016, immediately prior to the alleged Ottawa Street closure when there was no alleged construction ongoing, of (11.4%). Further, the range of fluctuations during the Ottawa Street closure was within the range of fluctuations in September to March, in the range of (25.6%) to 9.7%. Revenues continued to decrease in February and March 2017, subsequent to the reopening of Ottawa Street. Since the decreases in the King Street location’s revenues during the alleged Ottawa Street closure are consistent with decreases experienced prior to the closure and immediately subsequent to the closure, when there was no alleged ongoing construction, it does not appear that the decrease can be attributed to the alleged Ottawa Street closure and may instead be the result of other factors including the special pricing offered by Economy Lube and Tire;

(s) The King Street location’s revenues decreased in each of the months May to July 2017 when compared to the same months of the previous year, however, the range of decrease, of (7.8%) to (13.7%), was consistent with that experienced when there was no ongoing construction. The range of decrease in the King Street location’s revenues increased to (7.6%) to (18.7%) during the period August to October 2017, after the road in front of the Leased Property had been paved but other Phases of the King Street Project were continuing. Revenues increased in November 2017 by 22.8%, but then decreased in 9 of the next 10 months, subsequent to the completion of the King Street Project, with fluctuations in the range of (30.1%) to 11.1%. If the decreases in sales during the King Street Project were the direct result of the construction, it would be expected that there would be a continued decline once the construction had been completed. Revenues may or may not return to the same levels as prior to the construction but there should not be a continued decline in revenues if the decreases were directly attributable to the construction;

(t) Prior to the beginning of the COVID-19 pandemic in March 2020, where it would be expected that revenues would be negatively affected due to pandemic restriction, the King Street location’s revenues had increased in some months, but also decreased at higher rates than during the King Street Project construction in others. Revenues in the same months as the construction period, May to July / May to October, are lower in the years subsequent to the construction than during it. Given the continued decline in revenues subsequent to both the repaving of the road in front of the Leased Property at the end of July 2017, and the completion of the remaining Phases of the King Street Project, at higher rates than experienced during the construction it does not appear that the decrease in revenues during the King Street Project can be directly attributable to the construction; and

(u) Based on the analysis of the King Street location’s monthly revenues there does not appear to be evidence that the Claimant suffered a loss of revenue during the Claimant’s alleged construction periods that may be attributable to the Region’s construction.

24All of the opinions described and emphasized above in paragraph [23] were put to Mr. Tautrims on cross-examination but his opinions, findings and conclusions were not successfully challenged. The Tribunal agrees with and accepts those findings and opinions and again notes that that the Claimant did not tender any contrary expert business loss evidence for the consideration of the Tribunal. Finally, contrary to the arguments made in final submissions by the Claimant’s counsel, the Tribunal finds that there was ample evidence from both the Claimant’s principal and from Mr. Tautrim’s analysis to support a finding that the Claimant’s business faced stiff competition in its marketplace, including lower price competition, that could materially contribute to any decline in revenue and profit.

25Claimant’s counsel cross-examined Mr. Tautrims on the issue of whether the periods of road construction by the Region could reasonably be seen to have negatively impacted the Claimant’s business, but those efforts yielded no admissions or facts to support that generalized notion - which was also not supported by any objective countervailing opinion evidence. A few examples from the transcripts from the hearing of those exchanges are as described below:

Q. All right. Let’s take the construction on King Street that was directly in front of his business. Would you say that would have an impact on, on a business person not being able to drive along the street normally they normally take.

A. What we normally look at is has access been prevented to get to the property and access was, you know, fully — the, the customers entered from the rear of the building. They knew that you would go to the back, that there was a road there to access the building. And that was never in question. That was alway open.

Q. All right...A. There was signage provided.

26In the Tribunal’s view, on the crucial question concerning the unreliability of the financial evidence presented by the Claimant, counsel for the Claimant was again unable to successfully challenge Mr. Tautrim’s opinions, as demonstrated by several exchanges as reproduced below from the transcripts of Day 4 of the hearing as the cross-examination ended:

Q/A. A. If — yeah, there’s, there’s a whole you know, the issue with this, Mr. Grossman, is that these financial statements are unreliable. I mean, just taking a look at this sheet here that you put up there is two bottom categories just as a perfect example. We’ve got chequing over and under. I mean, it swings all over the place and it’s not like ten dollars or a hundred dollars. It’s like $17,000 of expenses that we have no idea what that is. We have uncategorized of $14,000. If you, if you go — scroll back. Yeah, there we go. Like there are so many things irrespective that it doesn’t tie into either HST or the, or the tax return. So if you are doing a normal litigation report you deduct off all the variable expenses and you have to go through and understand each one and then you would, and then you would look at the cost savings. That is a standard way of calculating a litigation damage quantification. We can’t do it with this report. We can’t do it with this, these financials, any of them because we don’t even know which is right.

Q. All right. This, this witness is – my client’s testified that the, all the sales are recorded, there are no cash sales and, and would that be your analysis as well? This isn’t a business that would lend itself to cash sales?

A. This does lend itself to cash sales. Absolutely, automotive does. I’ve done so many automotive claims. I can tell you 100 percent certainty it does involve cash. The...

Q. All right...

A. ...schedule two — hold on. To answer your question you asked me about the revenues, the revenues are not consistent with either the tax returns, the HST filings or the financial statements here. So I don’t know what’s right. I mean that’s question number one I think in my appendix A of my report. It may be, may be further down but it is, it is a big question.

Q. Sorry, are you saying, are you suggesting then that he’s over-reported his sales?

A. I, I’m not — I don’t know what he’s reported. I don’t know the correct number.

Q. All right. He specified under oath that, that it’s the correct number…you’re suggesting that it can’t be because there’s too many question marks?

A. I’m, I’m telling you what I see and you can, you can see that in schedule two, you can, in the top line here, just the revenues, the revenues are inconsistent between the tax return and the P and L. We can see that down below if you just scroll down a little bit further the tax returns and the HST returns don’t agree. The HST returns and the financial statements don’t agree. All gross line numbers, none of them agree.

Q. If, if he was making a claim for loss of income — he’s making a claim for loss of income. So you would want the highest number – you’d want the lowest number in making your presentation, correct? I used to be making this and now I’m making that.

A. I have no idea. It’s got to be consistent from time period to time period and the fact that it isn’t and that the income statement is such a mess, the financial statements are, are, you know, just terrible. There are a whole bunch of adjustments going over – the tax returns have this massive, massive prior period adjustment. None of it all reconciles. I, I can’t tell what’s going on here.

27Some of the Claimant’s own testimony, via Mr. Adams, was consistent with the analysis provided by Mr. Tautrims. As an example, Mr. Adam’s evidence was that Lube N’ Go continued to have revenues during Stage I of the King Street Project showing that customers were able to access the Subject Property. In fact, Lube N’ Go had “good” revenues in June 2017 during the middle of the construction when King Street East was still a dirt road. Mr. Adams, in his testimony, described June 2017 as a “good month” in one passage from his testimony during his cross-examination:

366. Q. Okay, and you would agree with me that when I look at the gross revenues for June of 2017, do you see that it's $51,536.00?

A. Yes. A good month.

367. Q. Exactly. And you would agree with me that good month occurred while stage one of the King Street Construction was occurring?

A. Yeah, that would appear to be the time line.

[above emphasis added]

(iii) The Lack of Compelling Evidence to Support the Allegations That The Region’s Roadworks Caused The Claimed Losses

28Of course, the Region also strongly contested the arguments made in final submissions by the Claimant as to the significance of, and negative impact from, the various roadwork improvements undertaken by the Region in 2016 and 2017.

29It is unnecessary to provide an exhaustive analysis of these circumstances, particularly in a situation where the Claimant has been unable to present a convincing analysis to prove any resultant economic loss. However, the facts which emerged from the testimony of the Region’s witnesses which the Tribunal found to be persuasive and credible are summarized as follows:

(a) In April 2016, the Region closed the intersection of Ottawa Street South and Charles Street East (the “Ottawa / Charles Intersection”) as part of the construction of the LRT system for Kitchener-Waterloo. However, the Subject Property was not located at the Ottawa / Charles Intersection nor was it directly adjacent to the Ottawa / Charles Intersection. The closest intersection to the Subject Property was Ottawa Street and King Street East, which remained open throughout 2016. Motor vehicles could continue to travel in both directions on King Street East as well as on Ottawa Street North, the section north (east) of the Ottawa Street and King Street intersection;

(b) Motor vehicles south (west) of the Ottawa / Charles Intersection could proceed to the Subject Property through alternative routes. Mr. Finn provided evidence that detour signage was posted for the Ottawa / Charles Intersection and that the other cross streets of Stirling Avenue South, Borden Avenue South and Sydney Street South could be used to get onto King Street East and then to travel to the Subject Property;

(c) The evidence was that customers of Lube N’ Go south (west) of the Subject Property could use the “Expressway” in Kitchener-Waterloo to bypass the Ottawa / Charles Intersection. Three arterial roads west of the Subject Property (Trussler Road, Fischer-Hallman Road, Homer Watson Boulevard) had entrances onto the Expressway with exits onto Courtland Avenue and Ottawa Street North that could be used to get to the Subject Property. Even the Claimant’s witness, Mr. Cowgill, testified that he lived west of the Subject Property and used the Expressway and the Ottawa Street North exit to get to Lube N’ Go for work;

(d) There was substantial evidence which demonstrated, in the Tribunal’s view, that the Region made many efforts to help attract customers to affected businesses during LRT construction and not dissuade them. Moreover, the King Street / Ottawa Street intersection near the Subject Property remained open and no evidence was provided that traffic counts were eliminated between April and December 2016. In December 2016, construction of the LRT system at the Ottawa / Charles Intersection was largely complete and the Intersection was re-opened. Thereafter, motor vehicle traffic on Ottawa Street south (west) of King Street East fully resumed. The Tribunal therefore does not accept the contrary arguments urged by the Claimant’s counsel in his final submissions;

(e) On April 24, 2017, the Region commenced construction of Stage I of the King Street Project. This means that no Regional construction occurred for approximately four months since the reopening of the Ottawa / Charles Intersection. Yet, based on the evidence of Mr. Tautrims, the Lube N’ Go gross revenues for February and March 2017 were less than the gross revenues for the same months in 2016. The Tribunal agrees that there was not a correlation between the reduced gross revenues for Lube N’ Go and the Regional construction projects;

Construction occurred on King Street East in front of the Subject Property for approximately four months from late April 2017 to mid-August 2017 which was a relatively short and temporary duration of interference. It was uncontradicted that throughout this period of time customers of Lube N’ Go could access the Subject Property through the municipal laneway at the rear (the “Laneway”);

(f) The Laneway was a critical benefit that many other properties in the Project area did not enjoy. Mr. Adams for the Claimant acknowledged in his evidence that customers could access the lube bay at the rear, then back out and leave through the Laneway. It is also important to note that the two mechanical bays for the Lube N’ Go shop were at the rear and that operations were not impacted by using the Laneway. Lastly, Lube N’ Go had the benefit of being located on the farthest western (northern) edge of Stage I, near the intersection of Ottawa Street and King Street East. This meant that motor vehicles traveling on the fully open Ottawa Street could see the Lube N’ Go signs (including the pylon and temporary sign erected by Lube N’ Go) and the Laneway. This undermines any assertion that Lube N’ Go experienced a disproportionate impact than the other businesses;

(g) In the Agreed Statement of Facts filed for the hearing, it was further admitted that “On or about May 2, 2017, the Region installed two signs on Ottawa Street at the entrance to the Laneway advising southbound and northbound traffic of access through the Laneway to Lube N Go.” ;

(h) Again, the Tribunal finds that contrary to the unsupported contentions made in the Claimant’s final argument about a massive loss of traffic near the Subject Property, the evidence at the hearing demonstrated that traffic continued to exist at the intersection of King Street East (west of Stage I) and Ottawa Street in 2017 with full view of the signage for Lube N’ Go;

(i) The Tribunal accepts that photographic evidence showed construction on King Street East in front of the Subject Property. These photographs showed wet conditions in early May 2017 as a result of an unusually wet period of time. It also showed a time on May 2, 2017 when the front access to the Subject Property was blocked as a water main trench was installed. These disruptions were relatively short-lived as noted by the Region’s witness, Mr. Couture, in his testimony that it took one-half day for the water main trench in front of the Subject Property and they were mitigated by the Laneway. Mr. Couture also testified that during that period he observed Lube N’ Go customers exit from the lube bay onto King Street East. In addition, both the evidence from Mr. Cowgill (for the Claimant) and Mr. Couture is that motor vehicles were using King Street East to bring persons to a methadone clinic across the street from the Subject Property, showing that the road was passable;

(j) By July 22, 2017, King Street East in front of the Subject Property was paved. Road lines were painted by mid-August 2017 and Stage I of the King Street Project was complete. Mr. Bauer and Mr. Couture for the Region testified that this was a reasonable time period, given the nature of the works and the wet conditions in May, 2017;

(k) In August 2017, the Region commenced construction for Stage II of the King Street Project. It was the evidence of Mr. Couture that the westbound (northbound) lane of King Street East was left open for as long as possible allowing two-way traffic in front of Lube N’ Go. Stage II and III of the King Street Project did experience delays into 2018 and 2019. These stages, however, were not adjacent to the Subject Property;

(l) In or about October 2021, the Claimant sold the Lube N’ Go business at the Subject Property on financial and other terms that were not disclosed in evidence; and

(m) In terms of the LRT project by the Region at the Ottawa /Charles Intersection in 2016, in the Tribunal’s view, there was no convincing evidence that this in any way affected the Lube N’Go location or its business – despite the assertions made in final argument by the Claimant’s counsel - since these works were not adjacent to the Subject Property and the evidence showed that motor vehicle traffic continued on King Street East and Ottawa Street North;

PART THREE: THE APPLICABLE LEGAL TESTS HAVE NOT BEEN MET

30There is considerable jurisprudence relating to the standard that must be met by a Claimant seeking to recover damages for injurious affection caused by public works where no expropriation has occurred. The Tribunal has determined that this Claimant has not been able to demonstrate that it sustained any business loss, for the reasons described in Part Two above. However, even if the Claimant had done so, the Tribunal is of the view that there ought to be no compensation awarded in this case because the Claimant’s claims as presented do not satisfy the applicable legal test for recovery.

31The Claimant’s counsel relies on the Antrim case, as does the Respondent. The Claimant also relies on Rosenhek and Jordan Greenhouses (all as referred to in paragraph [18] above). The Respondent also cites many other decisions to support its position that there should be no recovery in these circumstances.

32In Antrim, the Supreme Court of Canada found that Sections 21 and 1(1), definition of “injurious affection”, of the EA, are the statutory basis in Ontario for a claim for injurious affection where no lands are taken. The Court went on to note the following principles:

(a) These statutory requirements mean that: (i) the damage must result from action taken under statutory authority; (ii) the action would give rise to liability but for that statutory authority; and (iii) the damage must result from the construction and not the use of the works. The first and third requirements are generally not an issue for injurious affection claims related to road construction because there is generally not a dispute that road construction is under statutory authority and that it is the construction and not the use of the finished works that caused the alleged injury. For the second requirement, which is generally the contested issue, the claim is normally framed as private nuisance;

(b) Private nuisance consists of a two-part test: to support a claim in private nuisance the interference with the owner’s use or enjoyment of land must be both substantial and unreasonable. A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all of the circumstances;

(c) Substantial interference “means that compensation will not be awarded for trivial annoyances”. In Antrim, the Court explained the first part of the test in paragraphs 21 and 22 of its decision:

[21] Retaining a substantial interference threshold underlines the important point that not every interference, no matter how minor or transitory, is an actionable nuisance; some interferences must be accepted as part of the normal give and take of life. Finally, the threshold requirement of the two part approach has a practical advantage: it provides a means of screening out weak claims before having to confront the more complex analysis of reasonableness.

[22] What does this threshold require? In St. Lawrence Cement [St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392], the Court noted that the requirement of substantial harm “means that compensation will not be awarded for trivial annoyances”: para. 77. In St. Pierre [St. Pierre v. Ontario (Minister of Transportation and Communications), 1987 CanLII 60 (SCC), [1987] 1 S.C.R. 906], while the Court was careful to say that the categories of nuisance are not closed, it also noted that only interferences that “substantially alte[r] the nature of the claimant’s property itself” or interfere “to a significant extent with the actual use being made of the property” are sufficient to ground a claim in nuisance: p. 915... One can ascertain from these authorities that a substantial injury to the complainant’s property interest is one that amounts to more than a slight annoyance or trifling interference. As La Forest J. put it in Tock v. St. John’s Metropolitan Area Board, 1989 CanLII 15 (SCC), [1989] 2 S.C.R. 1181, actionable nuisances include “only those inconveniences that materially interfere with ordinary comfort as defined according to the standards held by those of plain and sober tastes”, and not claims based “on the prompting of excessive ‘delicacy and fastidiousness’”: p. 1191. Claims that are clearly of this latter nature do not engage the reasonableness analysis.

[above emphasis added]

(d) Unreasonable interference is a balancing exercise to determine whether the interference is such that it would be unreasonable in all of the circumstances to require the claimant to suffer it without compensation. The factors considered are the severity of the interference, the character of the neighbourhood, the utility of the authority’s conduct, the reasonableness of the authority’s conduct, the sensitivity of the claimant, and the frequency and duration of an interference. In Antrim, the Court explained the second part of the test in paragraphs 39 and 40:

[39] The distinction is thus between, on one hand, interferences that constitute the “give and take” expected of everyone and, on the other, interferences that impose a disproportionate burden on individuals. That in my view is at the heart of the balancing exercise involved in assessing the reasonableness of an interference in light of the utility of the public authority’s conduct.

[40] Of course, not every substantial interference arising from a public work will be unreasonable. The reasonableness analysis should favour the public authority where the harm to property interests, considered in light of its severity, the nature of the neighbourhood, its duration, the sensitivity of the plaintiff and other relevant factors, is such that the harm cannot reasonably be viewed as more than the claimant’s fair share of the costs associated with providing a public benefit. This outcome is particularly appropriate where the public authority has made all reasonable efforts to reduce the impact of its works on neighbouring properties.; and

[above emphasis added]

(e) In regard to the factor concerning the duration of the interference, the Court in Antrim went on to state the following in paragraphs 41 and 42:

[41] It is clear, for example, that everyone must put up with a certain amount of temporary disruption caused by essential construction…

[42] There are several important ideas in this quotation. One is that the duration of the interference is a relevant consideration. Admittedly, duration was not a relevant factor in this case because the injury was permanent. In cases where it is relevant however, it is helpful to consider that some sorts of temporary inconvenience are more obviously part of the normal “give and take” than are more prolonged interferences. While temporary interferences may certainly support a claim in nuisance in some circumstances, interferences that persist for a prolonged period of time will be more likely to attract a remedy: see, in the context of public nuisance, Wildtree Hotels Ltd. v. Harrow London Borough Council, [2001] 2 A.C. 1 (H.L.).

[above emphasis added]

33Of course, the actual determination made by the Supreme Court in Antrim must be kept in mind: the Court upheld on appeal the original decision reached by the Ontario Municipal Board to award compensation for injurious affection in respect of business losses sustained by the owner of a long-standing truck stop.

34In a key passage at the outset of the Antrim decision, Mr. Justice Cromwell, for the Court, stated:

The main question on appeal is this: How should we decide whether an interference with the private use and enjoyment of land is unreasonable when it results from construction which serves an important public purpose? The answer, as I see it, is that the reasonableness of the interference must be determined by balancing the competing interests, as it is in all other cases of private nuisance. The balance is appropriately struck by answering the question whether, in all of the circumstances, the individual claimant has shouldered a greater share of the burden of construction than it would be reasonable to expect individuals to bear without compensation. Here, the interference with the appellant’s land caused by the construction of the new highway inflicted significant and permanent loss on the appellant; in the circumstances of this case, it was not unreasonable for the Board to conclude that an individual should not be expected to bear such a loss for the greater public good without compensation…

I would allow the appeal and restore the order of the Ontario Municipal Board.

[above emphasis added]

35No doubt, the Antrim passage reproduced in paragraph [34] above is what inspired the Claimant’s counsel to cite this case as support for his client’s claim for compensation in this proceeding. Thus, the Claimant’s counsel in final submissions argued in reliance on Antrim that:

It is submitted that in these circumstances the Applicant alone should not be made to bear the financial impact at such a significantly disproportionate share of the effects of the nuisance which benefits large portions of the entire Regional Municipality for generations. The benefits of the 2 projects are clearly of a significant long-lasting benefit to the entire region which are intended to cover a period of 75 years. We submit that the financial burden was exceptionally arduous for the Applicant and warrants the award for revenues lost during the execution of these projects.

36In the Tribunal’s view, counsel for the Claimant has not misstated the principles set out by the Supreme Court in Antrim. However, the Claimant has been unable to satisfy the Tribunal on the balance of probabilities that its claimed losses were caused by the roadway projects undertaken by the Respondent. In other words, the Claimant has not proven that it suffered a financial or other burden that constitutes a “…disproportionate share of the effects of the nuisance…” caused by the Region’s improvement projects conceded to be of substantial benefit to residents of the Region. The Tribunal notes that the Respondent, in its Reply filed June 19, 2018, paragraph 15, pleaded:

…such alleged losses and damages… [as described by the Claimants] … do not amount to a disproportionate burden borne by the Claimant as a result of the works. The construction of the works has occurred in the proximity to several properties within the Region, including a significant number of commercial properties, and had an impact across a broad cross-section of the Region.”

37Interestingly, no evidence was called by either Party for this hearing relating to the Reply pleading described in paragraph [36] above. It is not the Respondent’s obligation to tender evidence on the ‘disproportionate burden’ alleged by the Claimant – i.e. to in effect prove the negative. However, the Claimant cannot make an effective argument about its alleged disproportionate burden without an underlying evidentiary basis. Thus, the Tribunal is left with the bare assertion in final argument made by the Claimant’s counsel but was offered no written or oral evidence to consider on the question.

38The closest that either Party got to the issue referred to in paragraph [36] was when, during direct examination, the Respondent’s counsel attempted to ask one of its witnesses whether any persons or entities made injurious affection claims arising from the Region’s roadworks projects. Claimant’s counsel objected to that question which was not pursued further by the Respondent. The Tribunal need make no comment as to whether evidence of other such claims would have been admissible, since none was tendered.

39With no available evidence to demonstrate whether the Claimant experienced an unusual or greater share of interference, hardship or inconvenience arising from the Region’s roadwork projects than did any other commercial enterprise or other resident, the Tribunal must reject the contentions made by the Claimant in final argument that its burden was “disproportionate”. Thus, one of the key principles of Antrim was simply not made out in this case. The sweeping generalized statements made by the Claimant’s counsel in final written argument are speculative and without specific evidentiary underpinning:

“The Question is in all of the circumstances is whether the Applicant should bear the consequences of the construction alone while the rest of community reaps the benefits… We submit that the benefits of the work performed was designed to benefit the entire community for a very long time. The entire community would be receiving a significant benefit that would last over several generations… It is submitted that in these circumstances the Applicant alone should not be made to bear the financial impact at such a significantly disproportionate share of the effects of the nuisance which benefits large portions of the entire Regional Municipality for generations…We submit that the financial burden was exceptionally arduous for the Applicant and warrants the award for revenues lost during the execution of these projects…”

40The Respondent referred to several other decided cases to support its position.

41Willies Car & Van Wash Limited v County of Simcoe, 2015 CanLII 28465 (ON LPAT) (“Willie’s Car & Van Wash”) was a proceeding where the claimant alleged that the realignment of County Road 10 led to a significant drop in traffic passing by the car wash and resulted in a reduction in the number of vehicles using its car wash. The Tribunal, in dismissing the claim, stated the following about that assertion:

[39] In Zadworski v. Ontario (Minister of Transportation and Communications) (1972, 4 L.C.R. 100) the Land Compensation Board found that there is a substantial distinction between a diversion of traffic (where access remains) and the complete destruction of access. The Board did not find that there was a common law right of action where there was a diversion of traffic and access continued where it caused inconvenience or loss of business.

In the same Decision, the Tribunal cited with approval the following passage from another case:

All highway construction will cause disruption. Sometimes it will damage property, sometimes it will enhance its value. To fix the minister with liability for damages to every landowner whose property interest is damaged, by reason only of the construction of a highway on neighbouring lands, would place an intolerable burden on the public purse. Highways are necessary: they cause disruption. In the balancing process inherent in the law of nuisance, their utility for the public good far outweighs the disruption and injury which is visited upon some adjoining lands. The law of nuisance will not extend to allow for compensation in this case.

Finally, the Tribunal remarked:

[40] The Claimant must establish on the balance of probabilities that the re-routing of County Road 10 was the cause of its alleged losses and it has not done so in this case. Revenues were up in the year following the re-routing and the evidence suggested that the later downturn may have been caused by weather related factors as well as the downturn in the automobile industry including the elimination of the third shift at the Honda plant in the period 2007- 2008. The Claimant has failed to establish any causal connection between the Respondent’s works and any loss it has alleged.

[all above emphasis added]

42A 2019 Tribunal Decision, also in broadly similar circumstances to this case, in A Bridal Legacy v Waterloo (Regional Municipality), 2019 CanLII 101421 (ON LPAT) (“Bridal Legacy”), considered a situation where the claimant business was 250 metres beyond the limit of construction with no construction activity affecting access to the premises. There the complaint was that customer traffic was prevented or slowed from getting through at a nearby intersection leading to the business that was in the construction zone. The intersection had a “no left turn” prohibition posted for a period of the construction. In dismissing the claim, the Tribunal, stated:

The Tribunal is not unsympathetic to the inconvenience to prospective clients, but given the destination nature of the specialty shop, the Tribunal is unable to find evidence that there was any direct or unreasonable interference attributable to the road work or temporary left turn prohibition to support the business losses as claimed by Ms. Normore. Unrestricted turning alternatives were maintained at all times at the next streets.

[above emphasis added]

43At least in respect of the LRT project in this proceeding, but also considering that the Laneway provided ease of access for customers from the rear of the Lube N’Go during King Street improvements, the fact situations in both Willie’s Car & Van Wash and Bridal Legacy and the rulings made by the Tribunal are relevant and informative.

44Another relevant decision of the Tribunal in 2021 was 2266088 Ontario Limited o/a Bull & Barrel Urban Saloon v. Windsor (City), 2021 CanLII 56445 (ON LT) (“Bull & Barrel”). In this case, the claimant operator of a restaurant and bar on Ouellette Avenue in the downtown core, commenced a claim against the City of Windsor (the “City”) for injurious affection based on the significant temporary public works along that street in 2018. The Tribunal considered that the claimant’s business was in the downtown core, that reasonable access was maintained (even if it was inconvenient at times), that there was no evidence that the claimant was any more sensitive than other businesses in the area, that the City’s project served an important public purpose, and that the City acted reasonably throughout the project. The Tribunal stated the following about the access interference:

[161] In summary, there was different, and sometimes inconvenient, access to the Bull & Barrel for temporary and limited periods of time during the City’s Project. Inconvenient access is not the same as no access. Customers of the Bull & Barrel had multiple ways to access the business during the City’s Project. In fact, they did so. Mr. Komsa testified that the Wednesday destination nights were still well-attended and there are several mentions in the record of customers lining up to access the establishment. Clearly, customers who wished to access the business were able to find a way to do so. It may not have been the most convenient route of access, but reasonable access existed at all times during the Project...

[above emphasis added]

45As noted, counsel for the Claimant relied on Antrim and on two other cases: Jordan Greenhouses and Rosenhek. The Tribunal is of the view that the facts in Jordan Greenhouses – and the evidence called on behalf of the Claimant there – are materially different from those in this proceeding. Simply put, there was substantially more evidence of interference and lack of access for the Claimant’s customers led in Jordan Greenhouses, which presumably in turn led to the award of some damages for injurious affection by the Tribunal’s predecessor. On the other hand, the facts of Willie’s Car & Van Wash, Bridal Legacy and Bull & Barrel far more closely resemble those of this case – and no such awards were made in any of those three decisions.

46The counsel for the Claimant cited Rosenhek for the proposition that ‘problems of proof’ regarding an income loss claim may not preclude some recovery. The facts of the Rosenhek case are wildly different than those present here.

47Rosenhek had worked for the Windsor Regional Hospital as a cardiologist for five years when his privileges were revoked without notice in 1989, and he was asked to leave the hospital immediately. His privileges were ultimately restored in 1999 by virtue of a decision by the Hospital Appeals Board. The Appeals Board found that the hospital board had no basis to revoke Rosenhek's privileges because his professional competency was not in question and because any personal problems he had with other staff members were minor. In his court action against the hospital, Rosenhek was able to convince the judge that the hospital board acted in bad faith in revoking Rosenhek's hospital privileges. The judge adopted the Appeals Board's findings, but not all of Rosenhek' s evidence relating to the extent of his loss and awarded damages significantly less than the $6,731,480 he claimed. Rosenhek had not provided all of the relevant OHIP records and income tax returns to support his claim for income loss. The judge based the $3 million award on his finding that Rosenhek's previously- lucrative practice was reduced and limited to walk-in clinics between 1989 and 1999 because of the hospital board's decision.

48The Ontario Court of Appeal rejected the appeal by the Windsor Regional Hospital on liability and damages and also the cross-appeal by Rosenhek on the trial judge’s reduced quantum of his loss. On the only point relevant to this case, the Court of Appeal remarked as follows:

In terms of the appeal as to damages, the Hospital, relying on Martin v. Goldfarb (1998), 1998 CanLII 4150 (ON CA), 163 D.L.R. (4th) 639, argues that since Dr. Rosenhek failed to adduce readily available evidence to prove his damages, he ought to be awarded only nominal damages. In Martin, Finlayson J.A. drew a distinction between damages that are difficult in nature to assess, an assessment that must be undertaken despite the need for "guess work", and damages that are unproven due to a failure to adduce available evidence. In the latter case, only nominal damages should be awarded.

…However, even in Martin, Finlayson J.A. declined to award nominal damages based on insufficient support for the damage claim; instead, he referred the damages back to the trial judge on the grounds that the plaintiff had adduced enough evidence to prove a significant loss. The principle appears to be that nominal damages are not appropriate where a substantial loss has been demonstrated, even if evidence proving quantum is lacking. There is no dispute that, with no justification, Dr. Rosenhek failed to introduce evidence that would have allowed his damages to be quantified with any degree of precision. The missing evidence included his OHIP records and income tax returns. This was documentation that, on all accounts, should have been produced in the normal course. It was also the subject of a specific production order.

…Notwithstanding Dr. Rosenhek's failure to meet his production obligations, in our view, the trial judge was entitled to make an assessment of damages despite having less than adequate evidence on lost income. Here, there was evidence to support the trial judge's acknowledgment of the magnitude of Dr. Rosenhek's loss. We refer to his finding that from 1989 to 1996 Dr. Rosenhek's previously lucrative practice was reduced and limited to walk-in clinics. Furthermore, while, according to the trial judge, the evidence of the expert upon whom Dr. Rosenhek relied to support his damage claim was deficient, it constituted at least some evidence that the income loss was sizeable.

…The trial judge's assessment followed the principle derived from Martin. In these circumstances, we see no reason to interfere with it.”

[above emphasis added]

49In this Tribunal’s view, the facts in Rosenhek are markedly distinguishable from those in this case and therefore the findings made by the Court of Appeal are of marginal relevance here. This Tribunal has accepted the detailed findings, opinions and conclusions of the sole damages expert, Mr. Tautrims, which were not successfully challenged during his cross-examination. Unlike in Rosenhek, in the Tribunal’s view, there is simply no reliable basis upon which this Claimant’s business loss claim can be awarded. Moreover, the Claimant has been also unable to prove a causal link between the Region’s road improvement projects and the claimed loss and has not made out a case in private nuisance under the principles recognized in Antrim. The Tribunal is not persuaded by the artful final arguments made in written submissions by the Claimant’s counsel which do not accord with either the actual evidence or the applicable law. As a final perhaps obvious point, the Tribunal notes that contrary to the tenor of the Claimant’s counsel’s final argument, it is not incumbent on the Respondent to successfully demonstrate that other factors may have caused or contributed to the Claimant’s claimed losses – in other words, there is no rebuttable presumption that the Region’s roadworks construction must be considered the sole causal factor.

ORDER

50THE TRIBUNAL ORDERS THAT the claims set out in the Claimant’s Notice of Arbitration and Statement of Claim are dismissed.

51If there is an unresolved dispute between the Parties concerning any matters arising from this Order, the Parties may make written submissions to the Tribunal. This Vice-Chair shall remain seized to deal with any such dispute.

“William R. Middleton”

WILLIAM R. MIDDLETON

VICE-CHAIR

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.

Attachment A