Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 11, 2024
CASE NO(S).: OLT-23-000298
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27
Claimant: Dean and Dale Harris
Respondent: North Grenville (Municipality)
Subject: Expropriation
Description: Easement to permit drainage for The Creek Subdivision
Reference Number: GC74277
Property Address: 5562 Rideau River Road
Municipality/UT: North Grenville / Leeds and Grenville
OLT Case No.: OLT-23-000298
OLT Lead Case No.: OLT-23-000298
OLT Case Name: Harris v. North Grenville (Municipality)
Heard: December 14, 2023 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Municipality of North Grenville (“North Grenville”) | Spencer Putnam, Tony Fleming |
| Dean and Dale Harris (“Harris” or “Claimants”) | Did not appear |
MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON DECEMBER 14, 2023 AND ORDER OF THE TRIBUNAL
PART 1: INTRODUCTION: THE CLAIMANTS HAVE IGNORED THESE PROCEEDINGS
1This was the hearing of this expropriation case conducted by video on December 14, 2023. The somewhat unfortunate history of this matter was summarized in the Tribunal’s previous Decision issued November 1, 2023 (“November 1-23 Decision”), and need not be repeated.
2Essentially, the Claimants have ignored or avoided all attempts to involve them in this matter. This happened even though the case involves the determination by the Tribunal of the compensation payable to them by North Grenville arising from a minor expropriation carried out on April 20, 2022 by North Grenville related to a drainage easement (“Expropriation”) over part of the property municipally known as 5562 Rideau River Road (being 5562 County Road 19) in North Grenville owned by the Claimants (“Subject Property” or “Larger Parcel”).
3Nonetheless, North Grenville, which filed a Notice of Arbitration dated April 3, 2023 concerning the Expropriation, wishes to have the amount of compensation owed to Harris determined by the Tribunal pursuant to the provisions of section 29 of the Expropriations Act, R.S.O. 1990, c. E.27 (“Act”). Although duly served with the Notice of Arbitration, the Claimants never delivered a Reply. They were also personally served with the November 1-23 Decision which set this hearing – after failing to appear at that case management conference despite having been duly served - yet still did not respond.
4The following materials were considered by the Tribunal at this hearing:
(a) Book of Documents, comprising 104 pages; and (b) Affidavit of Service of Megan George, sworn November 13, 2023, comprising 13 pages
PART TWO: UNCHALLENGED HEARING EVIDENCE
5In the absence of the Claimants, counsel for North Grenville called a single witness Mr. John Comba who is a real estate appraiser. Mr. Comba conducted the appraisal of the Subject Property on January 12, 2022, with an effective date of December 20, 2021. Mr. Comba has a Bachelor of Arts from Carleton University in Ottawa and obtained the AACI designation from the Appraisal Institute of Canada in 1994 following which he conducted many appraisals of both commercial and residential properties throughout Ontario. The Tribunal qualified him to provide opinion evidence on matters of real estate appraisal and valuation.
6Mr. Comba’s evidence and opinion was:
(a) His instructions were to appraise the market value of the easement taken by North Grenville of an easement over 0.57 acres of the Subject Property; (b) The Subject Property comprises a 26.81 acre property that is improved with an older single family house and some older farm buildings that appear to be in poor condition. The balance of the majority of the site represents cultivated farm fields that slope down towards Kemptville Creek; (c) The proposed easement was to be located in an existing drainage easement that is located in the southwest corner of the Subject Property. This easement is currently improved with a drainage ditch that provides drainage from a storm water management pond for a new residential subdivision that is located to the immediate south of the Larger Parcel; (d) The effective date of his appraisal report was December 20, 2021. A drive-by inspection of the Subject Property and the proposed easement was completed on December 27, 2021; (e) The appraisal report was based on the following assumptions:
- the Subject Property is free and clear of mortgages and/or other title encumbrances;
- the Subject Property and neighbouring lands are free of environmental contaminants; and
- the site area for the proposed easement totals 0.57 acres (f) As a result of his investigations and analysis, it was his opinion that the compensation payable for the proposed easement that is 0.57 acres in size as at December 20, 2021, was: Three Thousand Two Hundred Dollars ($3,200.00) (“Appraised Value”)
7In support of his conclusion as to the Appraised Value, Mr. Comba opined that:
(a) In accordance with the Official Plan for North Grenville, the eastern portion of the Larger Parcel is designated Rural and the western portion is designated Flood Plain Hazard. The zoning by-law for the municipality also designates the eastern portion of the Larger Parcel as Rural and the western portion as Flooding and Erosion Protection zone. The current use of the Larger Parcel with a single-family house along County Road 19 within the area designated Rural and farm land on the balance of the site appears to be a legal conforming use of the Larger Parcel; (b) The highest and best use of the Larger Parcel before the proposed easement would be continuation of its existing rural use; (c) The compensation payable for the proposed easement should be estimated in three steps. The first step is to estimate the market value of the Larger Parcel under its highest and best use based on the assumptions outlined in the covering letter and within this report. The next step is to estimate the compensation payable for the proposed easement. The third step is to determine if the proposed easement will result in any injurious affection to the Larger Parcel; (d) In summary, the comparable sales indicate a range of rates between $14,302 and $28,249 per acre with three of the five sales between $19,223 and $28,249 per acre. Based on the foregoing sales and analysis, the market value of the Larger Parcel as a vacant site would be based on $22,500 per acre; (e) A review of reported land compensation cases indicates that the compensation for an easement can range from 25% to 100% of the fee simple value of the lands. The amount of compensation paid is a function of the utility that the owner of the property still has after the easement has been given. Compensation at the lower end is usually given for sub-surface easements or hydro line easements over farm land where the farmer can still farm the lands over which the easement is located. Compensation at the upper end would be for lands that cannot be used as a result of the easement; (f) As per the judgement before the Ontario Land Compensation Board in the case of Boivin v. City of Gloucester (1981) CarswellOnt 1567, 23 L.C.R,. 130, no compensation was considered to be payable for an expropriation related to a drainage ditch that existed prior to the expropriation. Although the situation with respect to this easement is very similar to the facts in Boivin, nevertheless, the owners of the Larger Parcel should receive some compensation for their time and effort; (g) Based on the foregoing, the compensation for the proposed easement would be equal to 25% of the market value of the fee simple interest in the Larger Parcel assuming it was vacant. The compensation for the proposed easement on the Larger Parcel would be based on $5,625 per acre ($22,500 x 25%); (h) As such, the compensation payable for the proposed easement that is 0.57 acres in size that is to be located at 5562 County Road 19, as at December 20, 2021, would be calculated as follows: 0.57 acres @ $5,625 per acre = $3,206, rounded to $3,200; and (i) The proposed easement will be located in an existing drainage easement that is located in the southwest corner of the Larger Parcel. This easement is currently improved with a drainage ditch that provides drainage from a storm water management pond for a new residential subdivision that is located to the immediate south of the Larger Parcel. As such, the new easement will not put any additional burden on the owners of the Larger Parcel nor cause any additional work to the completed. Additionally, the current situation with the property will not change before and after the granting of this easement. Therefore, the Larger Parcel has not suffered injurious affection as a result of the Expropriation.
8After due consideration, and in the absence of any competing evidence, the Tribunal accepted the clear, cogent and persuasive evidence of Mr. Comba and his value conclusions as described above in this Part Two.
PART THREE: CONCLUSIONS
9Pursuant to sections 13(2), 14(1) and 29 of the Act, the Tribunal agrees that the Claimants are owed $3,200 in market value compensation for the expropriation of their lands carried out by North Grenville. Under section 33 of the Act, the Tribunal determines that the Claimants are owed interest payable on the market value compensation, at the rate of 6% per annum from the date of April 20, 2022.
10Pursuant to section 38 of the Act, in these circumstances North Grenville is entitled to pay all amounts owed to the Claimants into the office of the Accountant of the Superior Court of Justice.
ORDER
11THE TRIBUNAL ORDERS THAT:
(a) The total compensation payable to the Claimants Dean and Dale Harris for the Expropriation is $3,200.00 being the market value of the easement interest expropriated by the Municipality; (b) The Claimants are entitled to interest of 6% per year on the amount in paragraph 1, commencing on April 20, 2022 to the date that payment is made into court or is accepted by the Claimants; and (c) The Municipality of North Grenville may pay the compensation and interest fixed in sub-paragraphs (a) and (b) above into the office of the Accountant of the Superior Court of Justice, together with a sum of $94.60, being the interest on $3,200.00 at a rate of 6 per cent a year for a period of six months.
“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.