829872 Ontario Limited v. London (City), 2024 CanLII 101415

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 10, 2024

CASE NO(S).: OLT-24-000620

PROCEEDING COMMENCED UNDER subsection 7 of the Expropriations Act, R.S.O. 1990, c. E.26.

Expropriating Authority: The Corporation of the City of London

Owner: 829872 Ontario Limited

Owner: Ithayan Bavan and Aruljothi Bavan

Owner: Nicholas Brandon Ferguson-Newman

Subject: Hearing of Necessity

Description: Expropriation - Rapid Transit East London Link

Property Address: Various Addresses

Municipality/UT: London/Middlesex

OLT Case No: OLT-24-000620

OLT Lead Case No: OLT-24-000620

OLT Case Name: 829872 Ontario Limited v London (City)

Heard: September 13, 2024, by video hearing

APPEARANCES:

Parties

Counsel

City of London (“City”)

Christina McCreery

Ithayan Bavan & Aruljothi Bavan

Katyrina Zielinski

REPORT DELIVERED BY DOUGLAS S. COLBOURNE AND JACKIE DENYES AND ORDER OF THE TRIBUNAL

Link to Final Order

INTRODUCTION

1This is a report to the Expropriating Authority, City of London, following a Hearing of Necessity at the request of Ihayan Bavan and Aruljothi Bavan (“Appellants”) with respect to their property municipally known as 1390 Oxford Street East in the City of London, Ontario, as Part of Lot 69, Plan 19, City of London, County of Middlesex, Province of Ontario designated as Part 24 on Plan 33R-21810 being part of PIN: 08107-0001 (the “Subject Property”), for the purposes of the completion of the Rapid Transit East London Link Project Phase 4 and namely; to provide a dedicated bus rapid transit lanes, while improving the corridor and infrastructure to the East-West link in the City.

2This inquiry was held pursuant to s. 7 of the Expropriations Act R.S.O. 1990, c.E 26 (“the Act”) to determine whether the proposed takings by the City are “fair, sound and reasonably necessary in the achievement of the objectives of the Authority”, as the Act states or, are “reasonably defensible”, as the courts have interpreted this test.

SUMMARY OF EVIDENCE

3The City called two witnesses at this Hearing who were qualified in their field: Mr. Adrian Spahiu, Professional Engineer at the City of London and Mr. R.E. Ron LaPier, Professional Electrical Engineer of Bayfield Engineering Inc. Ms. Aruljothi Bavan, Property Owner gave evidence on behalf of she and her husband.

Evidence and Arguments of the Expropriating Authority, the City

4In-chief, Mr. Spahiu gave comprehensive evidence and testified how the partial expropriation of the above-described lands is fair, sound and reasonably necessary in the achievement of the City’s objectives. He stated the City has long prioritized transportation planning as a foundation of overall city-building and development and its need was first identified in 2004. He explained its objective is to improve transit reliability, capacity, frequency, and overall mobility of the transportation network in the City. He further opined that the project in question is integrated with the City’s Official Plan (“OP”) which also supports redevelopment, improves life cycle and infrastructure. He stated the City’s objective at issue is only one part of the bigger overall project.

5Significant consultation was undertaken throughout the Project, including through Committee Meetings and through the Municipal Class Environmental Assessment Study process (“EA Process”) where external agencies and property owners were contacted to provide input on the study findings in order to refine and reduce impacts to property owners. Through the “EA” process, the City can seek funding from all levels of Government. The Project represents the natural culmination of years of planning and attention to London’s long-term transportation needs.

6Testifying to the Transportation Master Plan, Mr. Spahiu indicated various corridors were evaluated to determine the preferred rapid transit routes and Oxford Street East (From Highbury Avenue North to Second Street) was established as the preferred corridor for Phase 4 based on considerations such as cost, support from existing ridership, linkages to major existing activity centres and potential to improve the public realm. Oxford Street East is an east-west 5-lane arterial roadway which is classified as Rapid Transit Boulevard by The London Plan.

7Mr. Spahiu outlined the portion of Phase 4 of the Project related to the Subject Property will introduce one eastbound rapid transit lanes to a total of five general traffic lanes and one bus rapid transit lane; the objective being to increase traffic frequency and reliability while improving the capacity of general traffic lanes by removing buses from general traffic lanes. Phase 4 also will increase the right-of-way along Oxford Street, provide new signalized intersections, construct centre medians, integrate active transportation facilities and enhance pedestrian and streetscape elements. He indicated acquisitions along both the North and South side of Oxford Street East are required for the purposes of Phase 4. He further indicated Phase 4 will repair and replace underground infrastructure and update private utility services to support infrastructure renewal, population growth, re-development, and revitalization along Oxford Street East.

8Mr. Spahiu testified intersection widening and improvements impacts the corner of the Subject Property and that a partial acquisition in the amount of 20.67 square metres (“m^2”) required for the purpose of a “daylight triangle” which will be used for physical infrastructure servicing the intersection including active transportation facilities sidewalk and traffic signal infrastructure.

9The City further requires 74.47 m² of the Subject Property for the purposes of a 12-month temporary construction easement following which the land will be restored and returned to the owner. It was the opinion of Mr. Spahiu that the building improvements on the Subject Property will not be impacted by the partial land acquisition or the temporary construction easement. He further testified that measures to mitigate the impacts to the Subject Property have been taken.

10Mr. Spahiu indicated delaying the acquisition of the required lands will adversely affect the construction schedule for 2025 and multi-level Government funding while prolonging the deficiencies affecting this area of the City.

11In cross-examination by Ms. Zielinski, Mr. Spahiu confirmed construction timing of Phase 4. He further confirmed the various stages of design found in the City’s Design Manual that include various components of traffic lane widths, bike lanes, median landscaping and streetlighting. He testified that through consultation with Fanshawe College, which is located adjacent to the Subject Property, safety concerns were identified with vehicles queuing up and the location of bus bays. Mr. Spahiu indicated the college is private property and therefore not intended for any changes regarding this project.

12When asked by Ms. Zielinski regarding the future Phase 5, Mr. Spahiu testified on a high level, that the extension east towards the airport has been reviewed by Council, but it has not approved. He stated currently there is no project to extend to the airport and could not comment on the need for parking and possible design of the Project.

13He was queried by Ms. Zielinski regarding setbacks and the City’s Zoning By-law which were objected to by Ms. McCreery, as Mr. Spahui indicated he was not a City Planner.

R. E. Ron LaPier

14Mr. LaPier provided expert testimony regarding a permanent hydro easement to facilitate the relocation of London Hydro infrastructure; namely, a steel guy wire which supports the hydro pole to be relocated south of the property line. He testified the Subject Property was the preferred location for the hydro pole based on the location of neighbouring hydro poles.

15Mr. LaPier further testified based on the concerns about the initial relocation of the hydro pole, the City consulted London Hydro who mitigated the Owner’s concerns by moving the hydro pole as far West as possible. Mr. LaPier confirmed that this compromise balanced the need to reduce impacts to the Subject Property but still constituted best engineering practices. He stated all that will be contained on the hydro easement will be a steel wire in the corner of the Subject Property.

16Briefly in cross-examination by Ms. Zielinski, Mr. LaPier confirmed there are no other connections anticipated to be connected to the pole at this time, but there could be a communication conductor at some point in the future, however that timing is indeterminant.

Evidence and Arguments of the Owners, Ithayan Bavan & Aruljothi Bavan

Ms. Aruljothi Bavan

17Ms. Bavan indicated she was the co-owner of the Subject Property with her husband. She testified as to renovations made to their home in the kitchen and the basement to attract tenants. She testified her main concern is validity to keep tenants and ability to find potential future tenants if tenants were to leave as a result of this expropriation. She expressed concern that her entire front yard would be taken leaving a bare minimum of 3 m or less thereby creating privacy concerns and changes the characteristic of their home.

18Ms. Bavan testified the road widening would result in unsafe conditions and changes the ability to turn on the streetscape to only one way traffic.

19Ms. Bavan stressed it would be less appealing for tenants to have the crosswalk in front of the house with increased constant noise as a result of a bus route . She indicated tenants would lose the parking lot and four spaces after permit taking. Overall, she testified, the construction project renders their property unsuitable for small family renters and as a result, they would be losing income on the renovation investments they have made to the Subject Property.

20In cross-examination, Ms. Bavan acknowledged the City has been working on a compensation package with her family due to the impacts on their property.

The Tribunal’s Findings of Fact and Opinion

21In the Tribunal’s view, the evidence of Mr. Spahiu and Mr. LaPier was not successfully challenged during cross-examination.

22In the Tribunal’s view, the evidence of Ms. Bavan suggesting the Takings can be significantly reduced in scope without impacting the City’s objectives, the proposed Takings are premature and her ability to rent the property would be negatively impacted given the reductions to the front yard and driveway parking, can and should be appropriately addressed through compensation, either through negotiation or an expropriation hearing on compensation and not through a Hearing of Necessity process.

23The Tribunal finds the City’s project serves the public by improving transportation capacity and mobility, improving municipal infrastructure and the acquisitions outlined are required for the completion of the overall City Project and that impacts to the Subject Property have been mitigated to the extent possible.

24After considering all of the evidence and written submissions filed, the Tribunal concludes that the Proposed Expropriation presented by the City for the partial taking of lands on the Subject Property meets the test in the Act, as being “fair, sound and reasonably necessary” in the achievement of the objectives of the Expropriating Authority.

25Court Decisions such as Parkins v. The Queen in right of Ontario et al, 19 R. (2d) 473, 14 LCR 327 determined that the test that the Inquiry Officer must apply can be expressed as to whether the proposal is “reasonably defensible in the achievement of the objectives of the Authority”.

ORDER

26For the reasons set out above, the Tribunal finds that the Takings attached to the Notice of Grounds are “reasonably defensible” in the achievement of carrying out the service improvements necessary.

“Douglas S. Colbourne”

DOUGLAS S. COLBOURNE

VICE CHAIR

“Jackie Denyes”

JACKIE DENYES

MEMBER

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.