Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 12, 2025

CASE NO(S).: OLT-24-000867

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

Expropriating Authority: The Corporation of the City of Barrie

Owner: Bernard Pope and Brian Pope

Description: Hearing of Necessity

Property Address: 280 McKay Road E

Municipality/UT: Barrie

OLT Case No: OLT-24-000867

OLT Lead Case No: OLT-24-000867

OLT Case Name: Pope v Barrie (City)

Heard:

October 29, 2024, in person

December 6, 2024, in writing

APPEARANCES:

Parties

Counsel

Bernard Pope and Brian Pope (“Owners”)

Aadil Nathani Jacquilyn Beauchamp, Student-at-Law

The Corporation of the City of Barrie (“Authority”)

Sean G. Foran Abbey Sinclair

REPORT DELIVERED BY ROBERT G. ACKERMAN, MEMBER

SUMMARY OF THE EVIDENCE AND ARGUMENTS ADVANCED BY THE PARTIES

1This Hearing event is an Inquiry pursuant to s. 7 of the Expropriations Act, R.S.O. 1990, c. E.27, as amended (“Act”), which has been requested by Bernard Pope and Brian Pope respecting the application by the City of Barrie (“City”) for approval to expropriate all right, title, and interest, in and to the lands and premises municipally know as 280 McKay Road East, Barrie, and more particularly described as: PCL 10-2 SEC 51-INN-10; S 1/2 LT 10 CON 10 INNISFIL PT 1 51R4974; SAVE AND EXCEPT PART 1 PLAN 51R-43576 AND PART 4 PLAN 51R-43575; INNISFIL BEING all of PIN 58097-0050 (LT), (the “Subject Property”). The Notice of Application for Approval to Expropriate Land was produced and filed as tab 7, Exhibit 1, and indicates that the Approval Authority is the Council for the City of Barrie.

2The Hearing proceeded as an in-person event at the Tribunal’s hearing facilities at 655 Bay Street in Toronto. The evidentiary portion of the Hearing was completed in one day, and the Parties subsequently filed written submissions which were completed on December 6, 2024. The Tribunal heard from three witnesses: Dawn McAlpine, who was called on behalf on the City and is the General Manager of Community and Corporate Services for the City; Bernard Pope, one of the owners of the Subject Property; and Duncan Heyblom, who was called on behalf of the Owners and testified as an expert witness. The Parties filed three Exhibits:

• Exhibit 1 – Document Book of the City;

• Exhibit 2 – Large scale mounted Aerial photograph of the Subject Property;

• Exhibit 3 – Documents Book of the Owners.

Evidence and Arguments for the City

3The Subject Property comprises 105 acres (“ac”). The southern 45 ac of the Subject Property fronting onto 45 McKay Road would be available for development. The northernmost 65 ac of the parcel are designated as environmentally protected. The Subject Property is improved with a farmhouse and farm buildings. The developable area and the environmentally protected area, which is designated as floodplain and is under the jurisdiction of the Lake Simcoe Conservation Authority, and the improvements, are all clearly identifiable on Exhibit 2.

4In response to the request for an inquiry served by the Owners’ Counsel, and as required by s. 7(4) of the Act, Counsel for the City delivered a Notice of Grounds, which was served upon the Owners and filed with the Tribunal on October 11, 2024. The Notice of Grounds provides, inter alia:

1. The objective of the City is to acquire the entirety of the Subject Property for municipal purposes, including the creation of recreational, parkland, and community uses (the “Project”).

2. The Project will provide needed facilities and amenities for the growing and developing Hewitt Secondary Plan and Salem Secondary Plan areas (together the “Secondary Plan Areas”), which may include:

a. Community Centre;

b. Library;

c. Outdoor Recreational Amenities; and,

d. Parkland.

5Ms. McAlpine testified that the notion that the City should acquire the Subject Property originated when the Owners approached the City with the proposal that the City acquire the Subject Property for a public park. She testified that, as a result of a provincial municipal boundary adjustment in 2010, the City now included two former portions of the Town of Innisfil known as Salem and Hewitt’s. The Subject Property is located within Salem in an area which abuts Hewitt’s. The need for multi-use community centres in Salem and Hewitt’s providing ice pads, swimming pools, outdoor recreation and sports fields, tennis courts, baseball diamonds, and parks had been identified in studies conducted by the City. She testified that, as a result of the approach by the owners, the City was persuaded that it should acquire the Subject Property for development of a single multi-use community centre which would be centrally located between Salem and Hewitt’s. As a result, City staff shifted the focus of their planning efforts from two smaller multi-use facilities in each of Salem and Hewitt’s, to a single, much larger facility which would be located on the Subject Property. In this regard, a number of the City’s planning and policy documents were produced within the City’s Document Book (Exhibit 1) and referred to by Ms. McAlpine, which were the 2017 Update to the Parks & Recreation Growth Strategy at Tab1, the Barrie Public Library Master Facilities Plan at Tab 2, the Implementation Program for the Barrie Tourism Master Plan at Tab 3, and the Barrie Parkland Needs Assessment at Tab 4.

6In her evidence, Ms. McAlpine testified that the municipal purposes referred to in the Notice of Application may include a community centre, library, outdoor recreational amenities, and parkland space. In this regard the City produced and filed four numbered Concept Plans for the development of the Subject Property (Tab 5, Exhibit 1) which showed differing configurations consisting of baseball diamonds, soccer fields, tennis courts, woodland & nature trails and learning areas, and, in Concept #3 and Concept #4, a 220,000 sq. ft. community centre and library. Ms. McAlpine testified that the Concept Plans were developed for purposes of the discussions with the Owners, and that Mr. Pope had indicated a preference for Concept Plan #4.

7Counsel for the Owners submits that, notwithstanding, Ms. McAlpine did not provide evidence that the City was committed to a plan to actually use the Subject Property for any of these purposes. The City submits that it has more than complied with the statutory requirements, and points to the voluminous, detailed documentation presented with respect to the Project in the City’s Document Book and the evidence of both Ms. McAlpine and Mr. Pope that they had monthly discussions respecting the Subject Property during 2021 and 2022. Ms. McAlpine testified that the City and the Owners were unable to reach an agreement for the acquisition of the Subject Property because of the insistence by the Owners that the City agree to the imposition of restrictions on the use which could be made of the Subject Property.

8In her testimony, Ms. McAlpine also testified respecting the City’s need for additional community centres, libraries, recreational facilities, and parkland spaces. She testified that the City has set completion date goals of 2028 and 2032 for the combined library and community centre facilities in each of the Hewitt and Salem Secondary Plan Areas, respectively. The Subject Property would allow for a single facility to fulfil the needs of both secondary plan areas. Ms. McAlpine testified that recreation and parkland needs have been identified to the year 2051, and there is a deficit of such facilities in the southern part of Barrie. She also testified that the planned interchange for McKay Road at nearby Highway 400 would make a community centre and recreational facilities at the Subject Property even more attractive from a tourism perspective. The interchange is targeted for the year 2034.

9Counsel for the City submits that the proposed expropriation is reasonably defensible and meets the test in s. 7(5) of the Act which, it is submitted, does not require a specific, defined plan to achieve the City’s objective, but only a clear objective or purpose. Such a clear objective or purpose may include a range of uses, and the evidence has established the required clear objective or purpose, and it is not open to the Owners, the Tribunal, or the Court, to dictate the use to which the City will put the Subject Property. Counsel for the City cites and relies upon the Decision of the Court of Appeal in 1739061 Ontario Inc. v. Hamilton-Wentworth District, 2016 ONCA 210, at paragraph 77:

It is, in short, not the court’s function, nor that of the Expropriations Act, to micromanage the school board’s actual use of the property, so long as it is used as part of a school site or related amenities owned by the board.

10Counsel for the City submits that the position of the Owners conflates the City’s objectives or purposes for the expropriation with a plan to implement those objectives. Counsel continues that, pursuant to Hamilton-Wentworth, the test under s. 7(5) of the Act does not require a specific, defined plan to achieve the City’s objective; rather, the test requires a clear objective or purpose, which is broader and may include a range of uses, and that such a clear objective or purpose has been established by the evidence.

Evidence and Arguments for the Owners

11Mr. Pope testified that the Subject Property had been in his family since 1947, when his parents purchased the Subject Property. He testified that he grew up on the farm and, when old enough, worked as a farm hand, and that he and his brother Brian have co-owned the farm since his mother passed in 2016. The evidence of Mr. Pope was that he originally approached the City with a proposal, which he testified was pursuant of his mother’s wishes, to sell the Subject Property to the City for development as a public park comprised of open spaces, conservation areas, and walking trails. He testified that his family remains willing to amicably sell the Subject Property to the City, provided that it will be developed as public park preferably in accordance with his mother’s wishes or in accordance with Concept #4. He testified that while he can see that the City “is headed in that direction”, he is concerned that without a firm commitment to do so, the City may put the Subject property to another use.

12Mr. Pope testified that he was engaged in discussions with the City from approximately 2020 to 2023, but that agreement for a commitment by the City to develop the Subject Property as a public park or in accordance with Concept #4 could not be reached. He testified that about six months following cessation of discussions, he was served with the City’s Notice of Application, by which he was surprised.

13Mr. Pope referred to the City’s Notice of Application for Approval to Expropriate Land dated July 15, 2024, which was produced and filed as Tab 7 to the City’s Document Book (Exhibit 1) as evidence that the City did not have a clear objective or purpose for the expropriation because the Notice of Application simply stated that the proposed expropriation was for “municipal purposes”.

14The position of the Owners, as set out in their counsel’s written submissions, is that the proposed expropriation is not reasonably defensible as the City does not have a clear plan establishing a clear public need or use for the Subject Property, and that the proposal to expropriate the Subject Property is therefore premature. Counsel for the Owners argues that the phrase “municipal purposes”, in the Notice of Application does not provide a clear objective to be achieved by the proposed expropriation, and that a clear nexus between the City’s purposes and the prerequisite for an expropriation of the Subject Property has therefore not been established.

15Counsel submits that the various studies relied upon by the City in support of the proposed expropriation, which were produced and filed within the City’s Document Brief, do not identify the Subject Property as a potential site for any project or municipal purpose. Counsel for the Claimants submits that Ms. McAlpine testified that the City had not conducted any property-specific analyses to determine the suitability or feasibility of the Subject Property for any purpose. Ms. McAlpine testified that the reason that the Subject Property is not mentioned in the City’s studies is due to the fact that the studies pre-date the initial approach by the Owners to the City regarding the Subject Property.

16Counsel for the Owners argues that the City’s Notice lacks clarity or certainty with respect to the municipality’s objectives for the expropriation, ambiguously defining the City’s objective for the proposed expropriation as being “for municipal purposes”. Counsel continues that the City’s Notice of Grounds provides that the “municipal purposes” referred to within the Notice may include a community centre, library, outdoor recreational amenities, and parkland space, and that the City’s witness, Ms. McAlpine, stopped short of stating in her evidence that the City was committed to a specific public project for which the Subject Property is required.

17The Owners request that the Tribunal find that the proposed expropriation is not reasonably defensible and recommend that the City pay for the Owners’ costs of this Hearing pursuant to s. 7(7) of the Act.

THE TRIBUNAL’S FINDINGS

18The Tribunal, after carefully reviewing the evidence, the testimony of the witnesses, and the law together with the submissions of counsel, makes the following findings and determinations.

19Pursuant to the decision of the Court of Appeal in Hamilton-Wentworth, the test under s. 7(5) of the Act does not require a specific, defined plan to achieve the City’s objective, but only a clear objective or purpose. The Tribunal finds that such a clear objective or purpose may include a range of uses. The Tribunal finds that the Notice of Application, when read together with the Notice of Grounds, satisfies the requirements for a clear objective or purpose. The Tribunal is of the view however, that such a statement of grounds, devoid as it is of any particulars, is not helpful and does not discharge the City’s responsibility under the Act, and the case law thereunder, to deal with the Owners in a clear and forthright manner. In this regard the Tribunal refers to the Decision of the Court of Appeal in Hamilton-Wentworth, confirming the importance of the Expropriating Authority’s statement of its purposes and objectives in a Notice of Application:

A statement of purposes for expropriation "accords with the basic principle that a person's property rights should not be taken from him except for the purposes specified by the Legislature": McRuer report, at p. 1074.

The terms "purposes" and "objectives" are not defined in the Expropriations Act, because the actual power to expropriate is found in other legislation. Accordingly, the purposes and the objectives to be considered in interpreting and applying the Expropriations Act flow from the legislation that authorizes the expropriation under scrutiny. For example, in Kathrose Developments Ltd. v. Peel (Regional Municipality), [1989] O.J. No. 1724, 42 L.C.R. 161 (C.A.), this court upheld a decision quashing a municipal expropriating by-law on the basis that it purported to exercise authority under s. 193(1) of the Municipal Act, R.S.O. 1980, c. 302, but did so "without a stated reason, without stating a municipal purpose, and without reports from any member of the staff".

I agree with the rigorous approach taken in each of these cases. The expropriating authority must state its purposes and objectives, and must be held to them, in order for the protective elements of the Expropriations Act to be effective in protecting the owner's interest. (Hamilton-Wentworth, at pp. 57-59 and 65).

20The Tribunal would add that in its view, a statement of grounds that simply states that the proposed Expropriation is “for municipal purposes” invites a request for an Inquiry under s. 6 of the Act, as it imparts no meaningful information to an owner since any expropriation by a municipality must be for municipal purposes. The use of such a bald statement of grounds by municipalities should therefore be avoided in the future.

21Notwithstanding the deficiency noted in the Notice of Application, the Tribunal finds that with the established objective or purpose in place as set out in the Notice of Grounds, and applying the principle in Hamilton-Wentworth, it is not open to the Owners or the Tribunal to dictate to the City its use of the Subject Property.

22The Tribunal finds that the evidence of Ms. McAlpine establishes that the City has a clear objective or purpose, which includes the creation of recreational, parkland and community uses, a community centre, a library, and outdoor recreation facilities.

23The Tribunal therefore finds that the City is not required to provide the Owners with certainty as to the defined plan or a specific use or uses of the Subject Property.

THE TRIBUNAL’S OPINION ON THE MERITS OF THE APPLICATION FOR APPROVAL AND REASONS FOR the OPINION

24After careful evaluation of the competing written and oral evidence tendered by the Parties and consideration of the arguments and final submissions of counsel, the Tribunal is of the opinion that the Application for Approval has merit as the proposed expropriation is fair, sound, and reasonably necessary in the achievement of the City’s objectives.

25The Tribunal finds that the City has a clear objective or purpose which requires the expropriation of the Subject Property.

26The Tribunal finds that an Expropriating Authority is not required to provide the Owner with certainty as to the defined plan or a specific use or uses to be made of the Expropriated Property.

COSTS

27The Owners have requested that the Tribunal recommend the payment of their costs pursuant to the provisions of the Act. In the Tribunal’s view, the lack of sufficient particulars in the City’s Notice of Application could have easily been avoided and likely precipitated the Claimants’ request for this Inquiry. The Claimants have, as a result, incurred costs on account of legal and expert fees which were, in all probability, avoidable. Pursuant to s. 7(7) and 7(8) of the Act, the Tribunal recommends to the Approval Authority, the Council for the Corporation of the City of Barrie, that the Owners be paid their costs of the Inquiry and Hearing, on a substantial indemnity basis.

“Robert G. Ackerman”

ROBERT G. ACKERMAN

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.