Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 01, 2024
CASE NO(S).: OLT-24-000133
PROCEEDING COMMENCED UNDER subsection 7 of the Expropriations Act, R.S.O. 1990, c. E.26.
Expropriating Authority: City of Windsor
Property Owner: Nicas Investments Ltd. and 2349136 Ontario Limited
Description: Expropriations Act – Request for Hearing of Necessity
Property Address: 0 St. Etienne
Municipality/UT: Windsor/ Essex
OLT Case No: OLT-24-000133
OLT Lead Case No: OLT-24-000133
OLT Case Name: 2349136 Ontario Limited v. Windsor (City)
Heard: April 5, 2024 by Video Hearing (“Hearing”)
APPEARANCES:
| Parties | Counsel |
|---|---|
| City of Windsor (“City”) | Aaron Farough |
| Nicas Investments Ltd. and 2349136 Ontario Limited (“Owner”) | Dante Gatti Jeffrey Adey |
DECISION DELIVERED BY WILLIAM MIDDLETON AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This proceeding was a Hearing of Necessity conducted on Friday, April 5, 2024, at the request of the City made on Thursday, February 1, 2024, pursuant to subsections 6(1) and 7(5) of the Expropriations Act, R.S.O. 1990, c. E.26 (“EA”).
2The City had previously delivered a Notice of Application for Approval to Expropriate Land (“Expropriation”) with respect to the Owner’s lands municipally known as 0 St. Etienne Windsor, Ontario (Legally Described as Part Lot 100 (McNiff) Concession 3 Sandwich East Formerly Lot 99 (Iradell) Concession 3, Part 1, 12R15949 being PIN 01408-1052; and Part Lot 100 Concession 3 McNiffs (Formerly Lot 99 Concession 3 Iradell) Part 2,12R19072 being PIN 01408-1968), subsequent to which on December 20, 2023, counsel for the Owners had requested the Hearing of Necessity.
3The materials before the Tribunal for the Hearing were:
(a) Book of Documents, comprising of 46 pages;
(b) Request for Hearing of Necessity, comprising of seven pages; and
(c) Case: McGillivary v. Township of Cornwall, 1977 CanLII 1031 (ON CA), 18 O.R. (2d) 283 (CA), comprising of five pages.
SUMMARY OF EVIDENCE AND ARGUMENTS
4The City called two witnesses, Denise Wright and Jason Campigotto. Ms. Wright is the Manager, Real Estate Services for the City. Mr. Campigotto is the Acting Deputy City Planner and Manager of Growth. The Owner’s counsel did not call any evidence.
5Ms. Wright testified as follows:
(a) The City acquired 3005 Deziel Drive, formerly owned by the Owner, due to accumulated tax arrears resulting in power of sale proceedings which concluded on December 12, 2022;
(b) 3005 Deziel Drive encroaches on the adjacent parcel of land;
(c) To facilitate dealing with 3005 Deziel Drive and the encroachment issue, in the absence of any other proposal by the Owner, the City initiated the Expropriation; and
(d) The Owner has not expressed any interest in 3005 Deziel Drive, but the City remains willing to consider any reasonable proposal from the Owner should these circumstances change.
6Mr. Campigotto testified that:
(a) He agreed with the evidence of Ms. Wright and also that the only reason that the City took ownership of 3005 Deziel Drive was due to the failure of the Owner to pay the accumulated tax arrears;
(b) The City has no records of any planning applications or other activity in respect of the lands subject to the Expropriation;
(c) The lands under the Expropriation constitute employment lands, and the City is interested in maximizing their future potential development pursuant to the City’s Economic Revitalization Community Improvement Plan (“CIP”);
(d) Consolidation of the lands under Expropriation will better facilitate such future potential development pursuant to the CIP; and
(e) Consolidation will also improve the municipal servicing of the lands under Expropriation.
7In the Tribunal’s view, the evidence of Ms. Wright and Mr. Campigotto was not successfully challenged during cross-examination.
8In closing submissions, the City argued that the planned Expropriation was in accordance with the City’s stated intentions under the Notice of Application for Approval to Expropriate Land and was fair, sound, reasonably necessary, and reasonably defensible.
9Counsel for the Owner contended that the City’s stated intentions for the Expropriation were not the “real reason” underlying the planned Expropriation and, therefore, that it was not fair and reasonable. Counsel for the Owner further argued that the decision of the Ontario Court of Appeal in McGillivary v. Township of Cornwall, 1977 CanLII 1031 (ON CA), 18 O.R. (2d) 283 (CA) (“McGillivary”) should lead this Tribunal to rule against the City.
10In the Tribunal’s view, the Court of Appeal’s ruling in McGillivary is simply not relevant to the issues in this hearing. That case involved an application brought under s. 283 of the Municipal Act, R.S.O. 1970, c. 284, to quash By-law No. 3316 of the Corporation of the Township of Cornwall. The appellant attacked the legality of this by-law, which declares that his land in the respondent Township was required for municipal purposes of the Township of Cornwall. The basis of the appellant’s argument was that the only reason for the passing of the by-law was the Municipality's intention to resell the premises, which had become vested in the Township due to tax arrears – an illegal purpose. This was not an expropriations proceeding.
11The Court of Appeal in McGillivary was satisfied that the proper inference to be made was that the by-law was enacted purely for the purpose of cutting off the Appellant's right to redeem his premises and that s. 53(1) of the Municipal Affairs Act does not create any new right in a municipality to declare by by-law that land is required for the purposes of the municipality.
12This Tribunal sees no parallel between the circumstances in McGillivary and the situation here. Here, the EA solely governs (leaving aside the question of whether the statutory provisions cited in McGillivary even still exist). There is no by-law at issue here nor can any ill motive be imputed to the City. The Owner is not being deprived of any discernable right and may have the benefit of compensation in a future proceeding under the EA. In fact, the Owner offered no evidence in this Hearing. The City’s acquisition of 3005 Deziel Drive due to the Owner’s accumulated tax arrears is a prior fact that is not at issue in this proceeding.
REPORT UNDER SUBSECTION 7(6) OF THE EXPROPRIATIONS ACT, R.S.O. 1990, C. E.26
13THE TRIBUNAL FINDS THAT the proposed expropriation by the City of Windsor of the lands municipally known as 0 St. Etienne Windsor, Ontario (Legally Described as Part Lot 100 (McNiff) Concession 3 Sandwich East Formerly Lot 99 (Iradell) Concession 3, Part 1, 12R15949 being PIN 01408-1052; and Part Lot 100 Concession 3 McNiffs (Formerly Lot 99 Concession 3 Iradell) Part 2,12R19072 being PIN 01408-1968), is fair, sound and reasonably necessary in the achievement of the stated objectives of the City of Windsor.
“William Middleton”
WILLIAM MIDDLETON
VICE-CHAIR
Ontario Land Tribunal
Website: 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.