Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 19, 2024

CASE NO(S).: OLT-23-001084

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

Expropriating Authority: County of Frontenac

Property Owner: Andrew Geddes

Subject: Request for Hearing of Necessity

Property Address/Description: Part of Lots 11 and 12, Concession 10 in the geographical Township of Palmerston, County of Frontenac

Municipality/Upper Tier: Frontenac/Frontenac

OLT Case No.: OLT-23-001084

OLT Lead Case No.: OLT-23-001084

OLT Case Name: Geddes v. Frontenac (County)

Heard: March 12, 2024 by video hearing

APPEARANCES:

Parties	Counsel/Representative*
Andrew Geddes	Self-represented
County of Frontenac	Spencer Putnam*

REPORT OF THE TRIBUNAL DELIVERED BY J. CAMPBELL

INTRODUCTION

1This is a report of a Hearing of Necessity (the “Hearing”) held before the Ontario Land Tribunal (the “Tribunal”) under Section 7 of the Expropriations Act, R.S.O. 1990, c. E.26 (the “Act”). The Hearing is in respect of the proposed expropriation by the County of Frontenac (the “Expropriating Authority”) of Part of Lots 11 and 12, Concession 10, in the Township of Palmerston (now the Township of North Frontenac), being Parts 1, 2, 3 and 4 on the Draft Plan of Expropriation included at Tab 7 of the Document Book appended to this report as Exhibit “1” (the “Subject Property”). The Subject Property is owned by Andrew Geddes (the “Property Owner”).

2The Expropriating Authority is in the process of completing a four-season, multi-use public trail system called the Frontenac K&P Trail as one segment of a broader K&P Trail, which traverses 180 kilometres north-south across multiple municipalities. The K&P Trail largely follows the railbed of the former Kingston and Pembroke Railway (the “Railbed”).

3The Expropriating Authority is proposing to expropriate the Subject Property in order to link two segments of the Frontenac K&P Trail via the Railbed which traverses the Subject Property. The Property Owner has requested this Hearing to consider whether the proposed taking of the Subject Property is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority” as set forth in section 7(5) of the Act (the “Test”).

4At the request of the Expropriating Authority, the Tribunal marked the Book of Documents of the Expropriating Authority as Exhibit “1” to this report.

SUBMISSIONS OF THE PARTIES

5Richard Allen testified on behalf of the Expropriating Authority. Mr. Allen manages the operation and promotion of the Frontenac K&P Trail and is responsible for the acquisition of new property to expand the trail. Mr. Allen testified as to the various benefits associated with the Frontenac K&P Trail, including (i) economic benefits to the surrounding communities that are generated by snowmobile and cycle/ATV tourism; and (ii) enhanced safety for recreational vehicles using the trail as an alternative to local roadways (many of which do not have adequate shoulders). He also confirmed that the lands comprising the Frontenac K&P Trail are principally based on the Railbed and involve rural residential properties without farming operations.

6Mr. Allen testified that the use of the Railbed for the Frontenac K&P trail is beneficial as it entails a heritage aspect and is also more cost-effective that utilizing other lands. He confirmed that the Expropriating Authority had considered other alternatives to expropriating land along the Railbed for the trail. However, as Frontenac County is part of the Canadian Shield, the region contains many wetlands and other challenging terrain on which it can be difficult to establish adequate infrastructure. Accordingly, the Expropriating Authority determined that the expropriation of properties along the Railbed is the most cost-effective and efficient means of expanding and constructing the trail.

7Mr. Allen then addressed the proposed expropriation of the Subject Property in particular, noting that it generally follows the Railbed subject to certain alterations that have been made to accommodate a nearby residential home owned by the Property Owner. Mr. Allen explained that the Property Owner owns several lots which come together in an unusual formation similar to an “upside down lollipop”, with the southernmost portion of the property housing the residential structure and the “stick” shaped end of the property protruding in a northernly direction. The northern portion of this “stick” widens by up to approximately 40 metres in some locations, as the western side of the property follows the edge of the Antoine Creek. The Expropriating Authority has proposed that the Subject Property to be expropriated follow the existing lot line of the residential parcel to the south (excluding the separate lot on which the residence is located) and include the entirety of the long “stick” to the north. The main area of dispute between the parties relates to the width of this “stick” shaped end of the Subject Property, with the Expropriating Authority proposing to take the entire width of such lands comprising up to approximately 40 metres in some locations, and the Property Owner disputing the rationale for such a wide taking.

8Mr. Allen testified that the minimum width required for the Frontenac K&P Trail is between 12 to 15 feet (or approximately 4 to 5 metres), comprised of the original Railbed together with a shoulder on either side of the Railbed to provide for drainage, infrastructure such as signage and fencing, maintenance and a general buffer to the adjoining lands. On cross-examination, Mr. Allen confirmed that the trail was only five metres wide in some locations, and up to approximately 20 metres wide in others. However, the irregular shape of the Subject Property has been proposed in order to (i) encompass the full width of the Subject Property to the north in order to avoid “orphaned parcels” on either side of the “stick” shape, which would be relatively narrow and not capable of development from an economic perspective; and (ii) to maintain the same width moving southward along the Subject Property in order to keep the trail as straight and consistent as possible while following the existing lot line of the parcel on which the residential home is located.

9Mr. Geddes was then sworn in as a witness, and raised potential flooding concerns in one area of the Subject Property in which there is a depression in the lands. However, on cross-examination, Mr. Geddes confirmed that the Railbed itself remained dry throughout the year in this area of increased watershed. He also raised some general concerns relating to the increase in dust and noise that was expected as a result of the use of the Frontenac K&P Trail and the potential environmental impacts of any dust remediation treatments. However, these matters are not before the Tribunal in this Hearing and Mr. Geddes testified that he is not opposed to the Frontenac K&P Trail in general. His principal objection at the Hearing related to the proposed width of the expropriation at the northern “stick” end of the Subject Property, which he argued should be narrowed to work in harmony with the surrounding lands and allow for the enjoyment of his remaining property. In particular, he noted that while he agrees that the “orphaned” lands on either side of the “stick” end of the Subject Property would not be capable of economic development, he and his family have utilized these lands for generations in order to access woodlands, maintain a boat launch, collect firewood, fish and generally enjoy the forested areas and adjoining meadows. Accordingly, while he will still have access to wetlands and woodlands of the surrounding area notwithstanding the width of the expropriation, he submits that he regularly utilizes and enjoys the lands on either side of the “stick” which are proposed to be expropriated.

ANALYSIS

10As noted above, the Expropriating Authority has submitted that the rationale for the wider taking at the northern portion of the “stick” is due to the unusual shape of the lands in question which expand and narrow along the boundary of the Antoine Creek, to avoid “orphaned parcels” that would be created on either side of the expropriated lands. The Test set forth in section 7 of the Act is threefold, requiring a determination as to whether the expropriation of the Subject Lands is “fair, sound and reasonably necessary” with regard to the objectives in question. The Tribunal accepts the testimony of the Expropriating Authority that the taking of the entire width of the “stick” end of the Subject Property would constitute good land use planning by eliminating “orphaned” portions of the property which would be too narrow for economic development. While the Property Owner has submitted that his enjoyment of the northern “stick” portion of the property is not related to its economic potential, this does not detract from the soundness of the proposal by the Expropriating Authority from a land use planning perspective. Accordingly, the Tribunal finds that the proposed taking satisfies the “sound” portion of the Test.

11In Parkins v. The Queen in right of Ontario et al. (1978 CanLII 1254), the Ontario Court of Appeal stated that

It is not necessary that each of the words "fair, sound and reasonably necessary" be treated separately in all cases. There are, as the trial Judge pointed out, too many variables, one of them being the point or points which the owner may wish to make.

However, in the case before the Tribunal, the submissions of the Property Owner directly related to (i) the reasonableness of the width of the northern portion of the taking; and (ii) the private interest of the Property Owner in the remaining parcels. With regard to the latter submission, the Court of Appeal stated in Parkins that private interests must be weighed against the public interest when considering the “fairness” prong of the Test. Accordingly, the Tribunal must also consider the reasonably necessary and fairness portions of the Test with regard to the proposed expropriation of the Subject Property in this case.

12The Expropriating Authority acknowledged that the width of the “stick” end of the Subject Property is significantly greater than the width of the Frontenac K&P Trail in other locations. However, the Expropriating Authority submits that while the Property Owner prefers that a narrower portion of the Subject Property be expropriated which would be more comparable to other areas of the trail, the test set forth in section 7 of the Act does not involve comparison of alternatives but instead requires the Tribunal to determine if the expropriation, as proposed, is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority”. While the Tribunal agrees with this submission, the width of the Frontenac K&P Trail in other locations is directly relevant to the determination of whether the size of the property to be expropriated is “fair, sound and reasonably necessary”. To phrase the matter another way, if a width of 5 meters is sufficient to provide for the Frontenac K&P Trail in other areas (inclusive of the adjoining buffer zone for infrastructure and maintenance), the Tribunal must consider whether a taking of up to approximately 40 meters in the case of the Subject Property would be “fair” or “reasonably necessary” in comparison.

13The Tribunal will turn first to the “reasonably necessary” prong of the Test. In considering whether an expropriation is “reasonably necessary”, the Court of Appeal in Parkins stated that the Test can also be expressed as whether the proposed expropriation is “reasonably defensible” in the achievement of the objectives of the expropriating authority. In this regard, Mr. Allen indicated that (i) the objectives of the Expropriating Authority are to connect and expand the Frontenac K&P Trail along the Railbed; and (ii) the minimum width required for the Frontenac K&P Trail is 4 to 5 metres. Based on this evidence, it is unclear how the proposed taking of the Subject Property (which ranges between approximately 20 and 40 meters wide) could be considered “reasonably necessary” or “reasonably defensible” in furtherance of the objective of expanding and connecting the trail over the Railbed which requires only a width of 5 metres. Further, the Expropriating Authority acknowledged that the sole reason for such a wide taking in this instance is due to the fact that the “stick” end of the Subject Property happens to be approximately 20 to 40 metres wide. In the Tribunal's view, this is further evidence that the proposed width of the northern portion of the Subject Property is not “reasonably necessary” as it has not been based upon the requirements for construction or maintenance of the trail itself but instead upon considerations of convenience to match the existing width of the northern portion of the Subject Property. Accordingly, the Tribunal is of the opinion that the width of the northern “stick” portion of the Subject Property does not satisfy the “reasonably necessary” prong of the Test in the context of the objectives of the Expropriating Authority.

14Although the expropriation of the Subject Property does not satisfy the “reasonably necessary” prong of the Test for the reasons set forth above, The Tribunal will also consider the “fairness” prong of the Test for the purposes of providing a complete analysis. In considering the fairness of the proposed expropriation, the interest of the Property Owner must be weighed against the interest of the public in expropriating the Subject Property for the purpose of expanding and connecting the Frontenac K&P Trail. Given that (i) a width of only 5 meters is required for the Frontenac K&P Trail; and (ii) the existing trail actually narrows to five metres in various locations, the Tribunal does see how an expropriation of less than 20 to 40 metres in the case of the Subject Property would have any material adverse impact on the construction of the trail over the Railbed or its use by the public. Conversely, the taking of the entire width of the “stick” end of the Subject Property to the north would have a materially adverse impact on the Property Owner who would lose significant access to the Antoine Creek as well as the use of woodlands and meadows which have been in his family for generations. There is no doubt that if the parcel to be expropriated is narrowed, the remaining parcels of land that would border the trail would not be capable of economic development. However, that does not mean that such lands are valueless or that the interests of the Property Owner would not be adversely impacted by their taking. To the contrary, the testimony of the Property Owner emphasized the intrinsic value of these lands given their access to woodlands, meadows and waterways. Accordingly, the Tribunal is of the opinion that the disadvantages to the Property Owner that would result from such a wide taking would outweigh any benefit to the public in having a wider parcel expropriated for the purposes of the Frontenac K&P trail. As a result, the Tribunal is of the opinion that the expropriation of the northern “stick” end of the Subject Property as presently proposed does not satisfy the fairness prong of the Test.

15The Tribunal also wishes to address the submissions of the Expropriating Authority to the effect that the Tribunal has found the taking of up to 30 metres for the purpose of expanding the K&P Trail in other cases to have met the Test. The Tribunal does not find this reasoning persuasive in this case. As the Court of Appeal referenced in Parkins, each case turns on its own set of variables. Furthermore, if a prior finding in respect of 30 metres would justify the taking of up to 40 metres in this case, then why not 50 metres in the next case, and so on? If that logic were to be applied, the concept of fairness and reasonable necessity prescribed by the Act would be undermined by a formula in which the size of the taking is perpetually increased over time based upon each prior finding.

16Finally, the Tribunal wishes to note that its findings as to the “fairness” and “reasonably necessary” portions of the Test are based principally upon the very wide taking along the northern “stick” portion of the Subject Property. Accordingly, if the width of the proposed expropriation is narrowed such that (i) it aligns more closely with the width of the land actually required for construction and maintenance of the trail; and (ii) it provides for a more appropriate balance with the continued use by the Property Owner of the remainder of his lands, particularly along the Antoine Creek, it is the view of the Tribunal that these prongs of the Test would be adequately met.

FINDING AND OPINION

17The Tribunal is of the opinion that the expropriation of the Subject Property as presently proposed is neither reasonably necessary nor fair in view of the objective of the Expropriating Authority of connecting and expanding the Frontenac K&P Trail along the Railbed. The Tribunal is also of the opinion that if the width of the proposed expropriation is narrowed (i) to align more closely with the minimum width of land required for construction and maintenance of the Frontenac K&P Tail; and (ii) to provide for the retention by the Property Owner of a reasonable portion of the northern “stick” end of the Subject Property and access thereto (particularly along the Antoine Creek), the proposed expropriation would be “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority” in accordance with section 7(5) of the Act.

“Jennifer Campbell”

JENNIFER CAMPBELL 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.