Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 28, 2024
CASE NO(S).: OLT-23-001203
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriation Act, R.S.O. 1990, c. E.26, as amended.
Claimant: Lajendra Singh
Claimant: Kissoondai Ramdayal
Respondent: City of Waterloo
Description: Determination of compensation
Property Address: 275 Lester Street
Municipality/UT: Waterloo/Waterloo
OLT Case No: OLT-23-001203
OLT Lead Case No: OLT-23-001203
OLT Case Name: Singh v. Waterloo (City)
Heard: October 28, 2024 by Video Hearing
APPEARANCES:
Parties
Lajendra Singh and Kissoondai Ramdayal
Counsel
John Doherty Jonathan Minnes Kevin Dias (in absentia)
Parties
City of Waterloo
Counsel
Peter Hertz Michael A. van Bodegom (in absentia)
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON OCTOBER 28, 2024 AND ORDER OF THE TRIBUNAL
1This event was the second Case Management Conference (“CMC”) before the Tribunal with respect to a claim for compensation pursuant to s. 26(1) of the Expropriation Act, R.S.O. 1990, c. E.26, as amended (“Act”), by Lajendra Singh and Kissoondai Ramdayal (“Claimants”), the former owners of the lands municipally described as 275 Lester Street (“Subject Property”) in the City of Waterloo (“City”), against the City, resulting from an expropriation that was registered on the Subject Property on Friday, December 4, 2020, by way of Expropriation Plan WR1302632. The purpose of the expropriation was for the creation of parkland and a pedestrian corridor. The entirety of the Subject Property was expropriated.
2On March 2, 2021, pursuant to s. 25 of the Act, the City served a formal offer of compensation on the Claimants, providing them with two options. The Claimants ultimately accepted an offer of immediate payment in the amount of $730,000.00. This amount was paid by the City. Such payment was made without prejudice to the Parties’ rights pursuant to the Act, including the rights of the Claimants to claim compensation from the City. The Claimants claim entitlement to additional compensation, including: payment for the market value of the Subject Property (in the amount of $1,700,000.00); disturbance damages in an amount to be determined; interest pursuant to s. 33 of the Act; and reasonable legal, appraisal, and other expert costs incurred to determine compensation, pursuant to s. 32(1) of the Act.
3A first CMC took place on April 9, 2024, during which a Procedural Order was reviewed and ratified and an eight-day (8-day) Hearing was scheduled to take place, spanning from May 20 to May 29, 2025. The Parties advised that they intended to engage in mediation with the hope of resolving this matter. However, this second CMC was scheduled to take place after the mediation to address procedural matters. Namely, a concurrent Civil litigation matter is before the Courts and the Parties disagreed as to whether the Tribunal proceeding could continue at the same time or if the Civil matter had to be addressed first.
PRIOR TO THE SECOND CMC
4On October 24, 2024, the Counsel for the City emailed the Tribunal and the Claimants’ Counsel to advise that, at the CMC, the City would ask that the Tribunal vacate the Hearing dates pending resolution of the related Civil Action, or alternatively, that a timetable be fixed for a motion to deal with this issue. Moreover, an issue had arisen at mediation that required clarification.
5On October 25, 2024, the Claimants’ Counsel responded that the Claimants would strenuously object to vacating the Hearing dates, and provided a number of reasons.
6On October 25, 2024 (Friday, end of day), the City’s Counsel provided certain materials and Caselaw Decisions that he intended to rely on at the CMC in support of the position that Hearing dates to be vacated.
SECOND CMC
7At the CMC, the Claimants’ Counsel reiterated the position that the Hearing dates should not be vacated. The Claim to date had proceeded in accordance with the ratified PO. The Claimants had complied with all required steps, including completion of mediation, and were ready to proceed. Vacating the Hearing dates at such a point would be quite prejudicial to the Claimants.
8The City’s Counsel submitted that there was an interplay here between the Civil Action and the expropriation proceeding before the Tribunal. He referred to paragraph eight (8) of the PO, which specifically highlights that this question is to be dealt with at the CMC. The City’s Counsel explained that there is an agreement by the Claimants to convey corridor lands, as well as an easement, but that the Claimants breached that agreement and did not convey the land. As a result, the City commenced the Civil Action. The outcome of the Civil Action will impact the expropriation proceeding, which deals entirely with the value of the Claimants’ land. If the land was to be conveyed to the City, that would impact the value to be determined by the Tribunal. As the City’s Counsel explained, “The Title issue is a precondition to the determination of compensation.” Thus, the Civil Action needs to be clarified before the Tribunal matter can proceed.
9The City’s Counsel added that awaiting the completion of the Civil Action does not mean that the expropriation proceeding is stopped entirely. For example, discoveries can take place, which will be useful in both the Civil Action and the expropriation proceeding. In fact, the issues at play between the Tribunal proceeding and the Civil Action are so interrelated that almost the same timeline would apply. In other words, the Tribunal’s timing would have to proceed according to the same timing as the Civil Action. Moreover, if the Tribunal Hearing proceeded as scheduled, the question raised at the CMC would nonetheless have to be dealt with on the first day of the Hearing, and the Hearing Adjudicator would have to make a finding on the issue of Title and what exact boundary of Property is to be valued.
10Moreover, the Claimants have not been prejudiced and will not be prejudiced here because a section 25 offer has already been made and paid, so the Claimants have received compensation. Thus, the City asked the Tribunal to vacate the Hearing dates or, in the alternative, to schedule a motion to deal with this question in a more formal way. He expressed that it was appropriate for the Tribunal to make an Order at the CMC, rather than scheduling a motion, because Provision 8 of the PO already indicated that such an Order may be made at the CMC.
11The Claimants’ Counsel argued that delaying the expropriation proceeding would be highly prejudicial to the Claimants as it was not clear what the timeline in the Civil Action would look like. Moreover, the Civil claim does not have merit because the settlement agreement at the basis of the Civil Action did not come to fruition. The settlement agreement was contingent on a Conditional planning approval by the Ontario Municipal Board ("OMB"), this Tribunal’s predecessor. In that agreement, the City allowed higher density on the Subject Property in exchange for conveyance of lands. However, the City has now removed those abilities. Thus, the Claimants’ position is that the settlement agreement no longer applies and there should not be a conveyance of land. Moreover, the expropriation itself rendered moot the Civil Action because now the City has taken the entire Subject Property.
12As a result of the Civil Action having no merit, the Tribunal proceeding would not be impacted by it in any way. Rather, if the Tribunal proceeding is halted, the Claimants will be highly prejudiced. The Claimants’ Counsel further explained that the Tribunal has full jurisdiction here to determine all issues in law, including whether there is land to be conveyed to the City as a result of the settlement agreement (approved by the OMB). Moreover, this expropriation proceeding is a set-off claim regarding the highest and best use of the Subject Property, which is fully within this Tribunal’s jurisdiction. Though the two cases are related, they can proceed independently of each other.
13The Tribunal enquired as to the type of Order that the Tribunal would be required to make if the Hearing proceeding. The Claimants’ Counsel explained that the City’s appraisal report has already contemplated two different values. If the Tribunal proceeding takes place before the Civil Action resolves, the Tribunal would have to make an Order with two options containing two different amounts for compensation: one accounting for the City succeeding in the Civil Action, and another for if the City does not succeed. In other words, the Tribunal must make a finding of two different compensation amounts, and the amount that is finally utilized is contingent on the Civil Action’s result.
14Ultimately, the Tribunal found that the issue at the heart of this matter is a jurisdictional question appearing to relate to Title of the Subject Property for which compensation is being claimed. Title of property generally lies outside of the jurisdiction of the Tribunal. However, the Title conveyance here is a result of a settlement agreement arising from a Tribunal proceeding. Thus, there is a nuance that may impact the answer. The Tribunal determined that this jurisdictional question could not be and was not adequately addressed by way of this last-minute motion. While provision 8 of the PO contemplated that this question could be considered at this CMC, the Parties had not provided the Tribunal with a formal motion submitted in accordance with the timelines outlined in the Tribunal’s Rules of Practice and Procedure (“Rules”). As a result, the Tribunal found that it did not have adequate information before it to make a just, efficient, and fair decision on this jurisdiction question. The Tribunal directed the Parties to bring a motion.
15A motion to consider this jurisdictional issue has been scheduled to take place in writing on January 31, 2025. The Parties have agreed upon the following timelines for the disclosure of motion materials:
a. December 9, 2024: Motion Materials of the City b. January 7, 2025: Responding Materials of the Claimants c. January 15, 2025: Reply Affidavit(s) of the City, if any, and Factum of the City d. January 24, 2025: Responding Factum of the Claimants e. January 28, 2025: Reply Submissions of the City in accordance with Rule 10.8 of the Rules
ISSUE THAT AROSE AT THE MEDIATION
16The City’s Counsel explained that an issue arose at the mediation. Namely, the position that the Claimants put forward as to what constitutes the “scheme and the highest best use” appeared to contradict the Statement of Claim and the expert reports. This was problematic as the City was not clear on the case it was required to meet. Thus, the City enquired as to whether the Claimants intended to revise the Notice of Arbitration and Statement of Claim.
17At the CMC, this issue was not discussed. The Tribunal directed that if the Parties are unable to reach an agreement on this question, they may include this in the issues to be addressed at the jurisdiction motion.
ORDER
18The TRIBUNAL ORDERS that a motion is scheduled to proceed in writing on January 31, 2025 to deal with the question of the Tribunal’s jurisdiction to proceed with the Hearing as currently scheduled, in light of the Civil Action commenced by the City, namely Superior Court File Number CV-19-00000192.
19The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.
“Bita M. Rajaee”
BITA M. RAJAEE 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.