Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 21, 2024
CASE NO(S).: OLT-24-000446
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: Yen-Pin & Wu Ruey-Jen Chen
Respondent: Town of Bradford West Gwillimbury
Description: Determination of compensation
Property Address: 2735 Sideroad 5
Municipality/UT: Bradford West Gwillimbury/Simcoe
OLT Case No.: OLT-24-000446
OLT Lead Case No.: OLT-24-000446
OLT Case Name: Chen v. Simcoe (County)
Heard: August 1, 2024 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| County of Simcoe | Irene Wong Matthew Owen-King (in absentia) |
MEMORANDUM OF ORAL DECISION DELIVERED BY G.A CROSER AND WILLIAM MIDDLETON ON AUGUST 1 2024
INTRODUCTION
1This Case Management Conference (“CMC”) was requested by the County of Simcoe (“County”) with respect to its expropriation of a portion of the property known municipally as 2735 Sideroad 5 in the Town of Bradbury West Gwillimbury (“Subject Property”).
2The County filed a Notice of Arbitration (“Notice”) and listed as Claimants the owners of the Subject Property at the time of the expropriation event. While this is usually a straightforward procedure, this case is unusual in that the listed owners of the Subject Property were apparently deceased before the expropriation occurred. The County served the Notice on the individual it believed to be one of the former owners’ next of kin, Amy Chen. Ms. Chen did not make an appearance at the CMC. In accordance with Rule 3.3 of the Tribunal’s Rules of Practice and Procedure, the Panel waited 15 minutes before commencing the CMC.
COUNTY’S REQUEST
3The County requested that the Tribunal determine the final amount of compensation and provided four possible directives:
- If the property owners are contesting the amount offered by the expropriating authority, then the County is requesting that the Tribunal issue a Procedural Order to govern the efficient advancement of expropriation compensation arbitration proceedings.
- If the property owners are not contesting the final compensation, then the County is requesting that the Tribunal issue a final Order confirming that the final compensation payable in accordance with the Expropriations Act is in the amount offered by the expropriating authority s. 25 Offer.
- If the property owners do not attend the CMC, then the County is requesting that the Tribunal issue an interim Order determining that the compensation payable in accordance with s. 25 amount offered by the expropriating authority.
- If the property owners do not attend the CMC, then owing to their non-responsiveness, that the Tribunal direct that the s. 25 compensation offer be paid into the office of the Accountant of the Superior Court of Justice in accordance with s. 38 of the Expropriations Act.
4This is a novel situation, and for the reasons listed below the Tribunal declined the County’s request.
EXPROPRIATION
5‘Expropriate’ is defined in s. 1(1) of the Expropriations Act (“Act”) as the “taking of land” this can take different forms, such as the permanent taking of lands or a temporary or limited interest in the lands or a portion of the lands by an “approving authority”. In this case, the ‘approving authority’ was the County which took a permanent portion of the Subject Property as part of its intersection improvement works to County Road 88 and 5th Sideroad in the Town of Bradford West Gwillimbury.
6The approving authority is required by the Act to compensate ‘owners’ for lands taken which also may include the payment of “reasonable legal, appraisal and other costs incurred by an owner for the purposes of determining the compensation payable”. ‘Owner’ is defined by the Act and includes tenants, executors, guardian of property, mortgagee, etc. but does not include ‘next of kin’.
THE ESTATE OF YEN-PIN CHEN & WU RUEY-JEN CHEN
7Counsel for the County, Ms. Irene Wong, informed the Tribunal that the Assessment Rolls for the Subject Property were amended in November 2020 to the Estate of Yen-Pin Chen and Wu Ruey-Jen Chen (the “Chens). However, the Land Registry Office still lists the Chens as the joint tenant owners of the Subject Property.
8Ms. Wong explained that County Staff had contact with the tenants who resided at the Subject Property. The tenants provided the County with contact information for Amy and David Chen, whom the tenants identified as the ‘next of kin’ of the Chens.
9The County has been unable to confirm the death of the Chens or confirm that Amy and David Chen are, in fact, the Chens’ next of kin. Attempts to communicate with Amy and David Chen have been largely unsuccessful. Ms. Wong explained that the County was unable to find death certificates for the Chens or evidence of an application for probate with the Ontario Courts. The Tribunal was informed that the property taxes for the Subject Property continue to be paid; however, the source of those funds was unknown.
10How does the County proceed when the death of the Chens is likely to have occurred but cannot be confirmed?
NEXT STEPS
11Ms. Wong informed the Tribunal that the County had served the Notice on the address on file with the County in accordance with the Rules of Civil Procedure (“Civil Rules”). Ms. Wong did not clarify the County’s position on Rule 9 of the Civil Rules which address Estates and Trusts. The Tribunal’s view is that the Notice must be properly served on the estate of the Chens (“Estate”) – the Chens cannot be the Claimants, given the fact that their deaths preceded the expropriation event. Furthermore, the status of Amy and David Chen with respect to the Chens remains unclear. As noted above, a next of kin has no standing, the County must work with the Chens’ Estate.
12The Tribunal has also noted that an Estate must be represented by legal counsel (see: OLT-22-004658 Decision issued August 25, 2023). As such, even if Amy and David Chen are the executors of the Chens’ Estate, the Estate must be represented by a lawyer. In addition, while it appears the tenants have relinquished their appeal rights, the s. 25 ‘Joint Offer’ could not be accepted as framed, given the fact that it lists the Chens by name and not the Estate, and because it requires joint acceptance by the tenants. The s. 25 Offer provided by the County will require revision.
13The Tribunal appreciates that the County are working from an information deficit, but further investigation is required before this matter can proceed. The Tribunal acknowledges that no one can force Amy and David Chen to respond to communications from the County or via its legal counsel. However, the Tribunal must be satisfied that the proper entity has been served notice of the proceeding, proof of service on the Estate, and that the Estate has had every opportunity to seek legal counsel and act accordingly.
14It is understandable that the County would like this matter to be concluded. On the other hand, the Tribunal must be confident that the proper entity has been served and that any offer to that entity has been properly and correctly made in accordance with the Act. To that end, the Tribunal suggested to Ms. Wong that a more fulsome affidavit of all attempts made to determine, locate, and serve the Estate could assist the Tribunal.
15In order for the County to conduct more investigations and make the necessary corrections to its Notice and Offer, it was determined by the Tribunal that a further CMC would not be scheduled at this time. The County may request a further CMC via the Case Coordinator or schedule a Telephone Conference Call, to update the Tribunal on its efforts. In the alternative, if further investigations do not result in a dialogue with the Estate, then the County may schedule a hearing to determine final compensation, assuming proper service on the correct entities has been effected as referred to in paragraph [14] above.
16The County’s counsel has agreed to seek instructions to effect personal service of this Decision on Amy and David Chen in the hope that it may inspire them to communicate with the County or the Tribunal on this matter. In the event that this Decision does come to the attention of Amy and David Chen, it is important for them to realize that the compensation which will be payable by the County in respect of the Expropriation is a significant asset for the Estate and its beneficiaries – they should also be aware that reasonable legal fees and other costs incurred to pursue that compensation are generally recoverable under the Act. It would be sensible for all of these matters to be considered if either of them is executor for the Estate – or if they know who the executor(s) are.
17The Panel will remain seized.
“G.A Croser”
G.A. CROSER MEMBER
“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.