Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 04, 2025

CASE NO(S).: OLT-22-003158 (Formerly LC050010)

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant: Paciorka Leaseholds Limited Respondent: City of Windsor Subject: Land Compensation; Injurious Affection Property Address/Description: Parts 5, 6, 7, 8, 12, 13, 15, 20, 22, 23, 34, 35, 36, 37, 42, 43 and 44 on Plan of Expropriation No. RE1541750, deposited in the Land Registry Office for the Registry Division Land Titles Division of Essex; Remaining lands within the Malden Planning Area shown on Registered Plan 911 Municipality: City of Windsor OLT Case No.: OLT-22-003158 Legacy File No.: L050012 OLT Lead Case No.: OLT-22-003158 Legacy Lead Case No.: LC050010 OLT Case Name: Paciorka Leaseholds Limited v. Windsor (City)

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant: Bruce Paciorka Respondent: City of Windsor Subject: Land Compensation Property Address/Description: Part 60 on Plan of Expropriation No. RE1541750 Municipality: City of Windsor OLT Case No.: OLT-22-003159 Legacy File No.: L050013 OLT Lead Case No.: OLT-22-003158 Legacy Lead Case No.: LC050010

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant: Paciorka Leaseholds Limited, Gordon Paciorka and Bruce Paciorka Respondent: City of Windsor Subject: Land compensation; Injurious Affection Property Address/Description: Parts 2, 3, 4, 8, 10, 13, 18, 24, 26, 40 and 42 on Plan of Expropriation No. R154470 (CE 191183); Remaining lands within the Malden Planning Area shown on Registered Plan 911 Municipality: City of Windsor OLT Case No.: OLT-22-003161 Legacy File No.: L060057 OLT Lead Case No.: OLT-22-003158 Legacy Lead Case No.: LC060055

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant: Elizabeth Frey Respondent: City of Windsor Subject: Land compensation; Injurious Affection Property Address/Description: Parts 46, 49 and 50 on Plan of Expropriation No. R1541750 and CE68952; Remaining lands within the Malden Planning Area and more particularly shown as Lots 242-244, Plan 875, and Lots 37-40 on the same Plan Municipality: City of Windsor OLT Case No.: OLT-22-003162 Legacy File No.: L070009 OLT Lead Case No.: OLT-22-003158 Legacy Lead Case No.: LC070009

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant: Paciorka Leaseholds Limited, Gordon Paciorka and Bruce Paciorka Respondent: City of Windsor Subject: Land compensation; Injurious Affection Property Address/Description: Parts 55, 57, 60, 64, 69, 70 and 115 on Plan of Expropriation No. RE1547685 (CE 312765), deposited in the Land Registry Office for the Registry Division and Land Titles Division of Essex (12); Remaining lands within the Malden Planning Area shown on Registered Plan 911 Municipality: City of Windsor OLT Case No.: OLT-22-003165 Legacy File No.: LC080005 OLT Lead Case No.: OLT-22-003158 Legacy Lead Case No.: LC080005

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6

Request by: Paciaorka Leaseholds Limited Request for: Request for Directions Heard: October 24, 2024 (in writing)

APPEARANCES:

Parties	Counsel
Paciorka Leaseholds Limited Bruce Paciorka Gordon Paciorka Elizabeth Frey ("Claimants")	Connor Harris Sarah Spitz
City of Windsor ("Respondent")	Andrew Baker Julie LeSage

DECISION DELIVERED BY ROBERT G. ACKERMAN ON APRIL 04, 2025, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Motion in writing is brought by the Claimants pursuant to subsection 32(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended ("Act"). A five-day hearing from April 29 to May 4, 2024 had been scheduled for the determination of the Claimants' s.32(1) costs as well as disturbance damages claim related to their financing costs for the litigation. As the Parties have settled the Claimants' costs and disturbance damages, the hearing was converted at the request of the parties to a Motion scheduled for a one-day hearing on October 24, 2024. Prior to the hearing the Parties requested that the Tribunal proceed with the matter as a written motion for the determination of the unresolved issue of certain post-judgment interest claims and whether the Respondent is entitled to a set-off in respect of certain outstanding costs orders in its favour. A Notice of Motion was not filed. On page 14 of its written submissions, the Claimant requested an Order as follows:

The Claimants respectfully request an Order from this Tribunal:

a. That the City pay post-judgment interest in accordance with section 129 of the Courts of Justice Act on the Claimants' Bill of Costs, as settled, calculated from the date of the Decision at the prescribed rate, subject to any set-off the Tribunal may deem appropriate;

b. That the City pay post-judgment interest on the Claimants' Amended Supplementary Bill of Costs, as settled, calculated from March 11, 2024 at the prescribed rate, subject to any set-off the Tribunal may deem appropriate;

c. That the City is not entitled to any set-off based on costs awards arising from the 2011 and 2012 appeals in this matter; and

d. Such further and other relief as counsel may advise and this Honourable Tribunal may permit.

2The properties at issue were expropriated starting in 2004. The Claimants were successful in their claims for compensation after a lengthy process that began prior to 2009 and concluded in 2021.

3A short history of the proceedings:

a. The Ontario Municipal Board ("OMB") released a decision determining compensation in December 2009 ("2009 OMB Decision");

b. The Respondent appealed the 2009 OMB Decision to the Divisional Court. The Divisional Court's decision dismissing the Appeal was issued on May 16, 2011 ("2011 Divisional Court Decision");

c. The Respondent appealed the 2011 Divisional Court decision to the Court of Appeal. The Court of Appeal's decision allowed the Appeal and remitted the matter back to the OMB for a new hearing on June 22, 2012;

d. The Court of Appeal issued a decision on costs dated September 13, 2012;

e. The Claimants sought leave to appeal the decision of the Court of Appeal to the Supreme Court of Canada. The Supreme Court dismissed the leave application on November 22, 2012;

f. The decision on the re-hearing on the merits ordered by the Court of Appeal was released by the Local Planning Appeal Tribunal ("LPAT") on February 7, 2020 ("2020 LPAT Decision");

g. The Respondent appealed the 2020 LPAT Decision to the Divisional Court. The Divisional Court dismissed the appeal on March 31, 2021;

h. The Respondent sought leave to appeal the Divisional Court's decision to the Court of Appeal which dismissed the leave application on October 14, 2021.

4The Parties settled the amount of the cost entitlements of the Claimants in accordance with section 32(1) of the Expropriations Act in April 2024, and have also settled outstanding disturbance damages awarded by the Tribunal. Thus, this Tribunal has never made an Order with respect to these costs.

5The compensation awarded to the Claimants in the 2020 LPAT Decision was the sum of $2,818,509.79, comprised as follows:

a. Market Value: $2,335,000;

b. Injurious Affection: $308,000; and

c. Disturbance Damages: $175,509.79.

6The disturbance damages were stated in the 2020 LPAT Decision to compensate the Claimants for the borrowing costs and interest paid in connection with loans and a line of credit which the Claimants had used to finance the litigation.

The issues to be decided on this Motion are the entitlement of the Claimants to post-judgment interest on their costs and whether a set-off is available to the Respondent for costs awards of the Court of Appeal and Supreme Court in its favour.

WHETHER POST-JUDGMENT INTEREST IS PAYABLE ON THE COSTS

7The Claimants' position is that the Respondent should pay post-judgment interest in accordance with Section 129 of the Courts of Justice Act, R.S.O. 1990, c.C.43, on the Claimants' Bill of Costs, as settled, and on the Claimants' Amended Supplementary Bill of Costs, as settled, calculated from March 11, 2024. The interest is to be calculated from the date of the Tribunal's Decision at the hearing on the merits in 2020, at the prescribed rate.

8With respect to costs, the 2020 LPAT Decision provides:

"the Tribunal will remain seized of this matter for the purpose of determining costs pursuant to s. 32 of the Act and will set the procedure, including a hearing date to fix the costs associated with these claims." (Paciorka Leaseholds Limited v. Winsor (City), 2020 CanLII 10059, at para. 308).

9The Respondent's Counsel, Mr. Baker, submits that while the Tribunal's Decision indicates that it remained seized respecting the issue of costs under the Act, the Decision cannot be read to provide that it crystalized an obligation to pay costs because no determination was made respecting which party was entitled to costs, or for which period costs were to be determined; or which costs were to be allowed, or upon which standard the costs would be determined. In any event, the Parties reached their own agreement on the quantum of costs without any adjudication by the Tribunal.

10The position of the Respondent is that post-judgment interest did not accrue and is not payable. Mr. Baker, argues that when the provisions of the Ontario Land Tribunal Act 2021, SO 2021, c. 4, Sched 6 ("OLTA"), the Rules of Practice and Procedure of the Ontario Land Tribunal ("OLT Rules"), and the Court of Appeal decision in Ministry of Transportation v. Tripp, 1999 CanLII 3762, are read together, post-judgment interest can only accrue once there has been an actual award of costs, which in this instance, has not been made. Instead, as noted, the Parties reached their own settlement of the costs payable under the Act.

16Mr. Baker submits that s.20 of the OTLA provides that "the Tribunal may, subject to any other Act, fix the costs of and incidental to any proceeding, and order a party to the proceeding to pay the costs, in accordance with the [OLT Rules]." (emphasis added). In turn, Rule 23.11 of the OLT Rules provides that "Awards of costs may bear interest in the same manner as those made under section 129 of the Courts of Justice Act, R.S.O. 1990, c. C.43 ". (emphasis added). The applicable provisions of the Courts of Justice Act are below:

17Section 129(1) of the Courts of Justice Act provides:

Postjudgment interest

129 (1) Money owing under an order, including costs to be assessed or costs fixed by the court, bears interest at the postjudgment interest rate, calculated from the date of the order (emphasis added).

18"Date of the Order" is defined in Section 127(1) of the Court of Justice Act as:

"the date the order is made, even if the order is not entered or enforceable on that date, or the order is varied on appeal, and in the case of an order directing a reference, the date the report on the reference is confirmed" (emphasis added").

19Section 129(4) of the Courts of Justice Act further provides:

Costs assessed without order

(4) Where costs are assessed without an order, the costs bear interest at the postjudgment interest rate in the same manner as if an order were made for the payment of costs on the date the person to whom the costs are payable became entitled to the costs. (emphasis added).

20The Court of Appeal has held that an award of costs under s.32 of the Act can attract post-judgment interest, provided that a copy of the decision by the Board (now the Tribunal) awarding costs is filed with the Superior Court and enforced as a judgment (Ministry of Transportation v. Tripp at para 24).

21Obviously, an order for the payment of costs was not made by the Tribunal in the 2020 LPAT Decision – because the Parties reached their own private settlement on costs. Without such a Tribunal Order, post-judgment interest did not accrue.

WHETHER THE TRIBUNAL CAN RELIEVE THE CLAIMANTS OF THEIR OBLIGATION TO PAY THE COSTS ORDERED BY THE APPELLATE COURTS

22The Court of Appeal and the Supreme Court ordered that the Claimants pay costs to the Respondent totalling $209,060 ("Court Costs Awards"). The costs ordered have not been paid. The Respondent has agreed to pay the Claimants' reasonable costs pursuant to s. 32(1) of the Act for the appeals of the OMB Decision to the Divisional Court, Ontario Court of Appeal, and Supreme Court of Canada, subject to an agreed reduction. Subsequent to the settlement a dispute arose between the Parties as to whether the Respondent is entitled to a credit, or in the terms of Counsel, a "set-off", for the Court Costs Award.

23Counsel for the Claimants, Mr. Harris, submits that the Respondent is not entitled to a credit or set-off arising from the Court Costs Award. Mr. Harris has referred the Tribunal to the Decision of the Court of Appeal respecting its order that the Claimants pay the Respondent's costs:

If on the rehearing the [Paciorka] respondents achieve an award that exceeds the amounts referred to in s. 32(1), costs payable pursuant to this order and/or the respondents own costs arising from the appellate process may be recoverable under s. 32(1): see Smith v Alliance Pipeline Limited, 2011 SCC 7, 1 SCR 160 at paras 62-66. The Board will have to make that determination if the issue arises. [emphasis added] (Windsor (City) v Paciorka Leaseholds Limited, 2012 ONCA 601 at para 3).

24However, Mr. Harris further argues that the result of the long history of the proceedings is an overwhelming success for the Claimants – and seeks in essence to have the Tribunal vary the Court Costs Award. The 2020 LPAT Decision contains a "relatively small difference" from the 2009 OMB Decision (albeit, in the Respondent's favour). Mr. Harris submits that it would therefore be unfair that the Claimants be required to pay the Respondent's costs for an appeal process that had the effect of delaying the determination of compensation by eight years to achieve only a "relatively small" adjustment to the result. Therefore, the argument goes, the Claimants should be entitled to recover and not pay, the costs payable to the Respondent as ordered by the Court of Appeal and the Supreme Court.

25The Respondent disagrees that the result of the re-hearing was a relatively small difference from the 2009 OMB Decision. Mr. Baker points out that the market value compensation amount was reduced by the Tribunal as a consequence of direction of the Court of Appeal to screen out the impact of the PPS. While the 2009 OMB Decision awarded $3,771,384 for market value and $767,000 for injurious affection, the 2020 LPAT Decision reduced the findings to $2,335,000 for market value and $520,000 for injurious affection (see The Corporation of the City of Windsor v. Paciorka Leaseholds Limited, 2011 ONSC 2876 at para. 3; and, Paciorka Leaseholds Limited v Windsor (City), 2020 CanLII 10059 at para. 309).

26Mr. Baker submits that the Claimants are, in effect, asking the Tribunal to vary a Decision or Order of an Appellate Court by permitting the Claimants to be relieved of their obligation to make the costs payments ordered by the Court of Appeal and the Supreme Court. He submits that the Tribunal "simply has no jurisdiction to do what the Claimants are requesting".

27In reply, Mr. Harris points to the Tribunal's comprehensive jurisdiction under the OLTA and the Act to fully determine costs in any expropriation proceeding. (Jackson v Metrolinx, 2024 CanLII 17004 at paras 6-9). In addition, the Tribunal is given the power to determine all questions of fact or law with respect to costs and other matters within its jurisdiction by s.8(2) of the OLTA. Mr. Harris submits that this would include the issues before the Tribunal on this Motion.

28Mr. Baker's response is that nothing in the language of the Court of Appeal's decision empowers the Tribunal to vary the costs order. He submits that the Court of Appeal made a clear distinction between its power to make a costs order in respect of the appellate litigation, and the Tribunal's power under s.32 of the Act:

The respondent's reliance on s. 32(1) is misplaced. The section applies to the Ontario Municipal Board and not to this court, and is triggered when the Board has made an order awarding at least 85% of the amount offered by the expropriating party. (Windsor (City) v. Paciorka Leaseholds Limited, 2012 ONCA 601 at para. 2.)

29Mr. Baker submits that the Court of Appeal stated that its costs order was not being made pursuant to s.32(1) of the Act, but pursuant to the Court's power to award costs in the proceedings before it. As the Tribunal and the Court operate within two separate costs regimes, there is no basis upon which the Tribunal may interfere with the costs orders of the Appellate Courts.

30The Tribunal agrees with the submission of Mr. Harris that the Tribunal has comprehensive jurisdiction under the OLTA and the Act to fully determine costs in any expropriation proceeding, and that the Tribunal is given the power to determine all questions of fact or law with respect to costs and other matters within its jurisdiction by s.8(2) of the OLTA. However, this power does not extend to the varying of an Order of a Court. The Courts and the Tribunal occupy and operate within two very separate spheres of jurisdiction. The Claimants' request to be relieved of its obligations to pay costs as ordered by the Court of Appeal and the Supreme Court, amount to a request that the Tribunal amend those Appellate Court Orders. The Tribunal has no jurisdiction to make such an Order.

ORDER

31THE TRIBUNAL ORDERS that the Motion be and the same is hereby dismissed without costs.

"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.