Cynthia Lynch v. Regional Municipality of Halton, 2025 CanLII 59840

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 13, 2025

CASE NO(S).:

OLT-24-001112

PROCEEDING COMMENCED UNDER section 32 of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant:

Cynthia Lynch

Respondent:

Regional Municipality of Halton

Description:

Determination of compensation

Reference Number:

Expropriation Plan HR1788361

Property Address

263 Burnhamthorpe Road W

Municipality/UT:

Oakville/Halton R

OLT Case No.:

OLT-24-001112

OLT Case Name:

Cynthia Lynch v. Regional Municipality of Halton

Heard:

In writing only

APPEARANCES:

Parties

Counsel

Cynthia Lynch (“Claimant” or “Owner”)

S. Foran, A. Sinclair

Regional Municipality of Halton (“Region”)

P. Morley, M. Grant

DECISION DELIVERED BY WILLIAM R. MIDDLETON AND FINAL ORDER OF THE TRIBUNAL

Link to Order

INTRODUCTION

1This is a costs adjudication pursuant to section 32 of the Expropriations Act, R.S.O. 1990, c. E.26 (“Act”) and conducted under Rule 26.21 of the OLT Rules of Practice and Procedure.

2The following materials were delivered for this written proceeding:

(a) Claimant’s Submissions on Costs, dated January 20, 2025, comprising 1069 pages;

(b) Respondent’s Response, dated February 14, 2025, comprising 163 pages;

(c) Claimant’s Reply Submissions, dated February 28, 2025, comprising 163 pages; and

(d) Respondent’s Surreply, dated March 12, 2025, comprising 82 pages.

3The Owner’s claim for legal, appraisal, and planning costs (“Costs Claim”) arises from the Region’s partial expropriation of lands municipally known as 263 Burnhamthorpe Road W in the Town of Oakville (“Expropriation”), legally described prior to the Expropriation as Part Lot 18, Concession 2 Trafalgar North Dundas Street as in 26711 except Part 1, 20R2931 and Part 1, Ex199; subject to an easement in gross over Part 2 on 20R1881 as in HR985211; Town of Oakville, designated as PIN 24929-0191 (LT), in the Town of Oakville, Regional Municipality of Halton (“Subject Property”). The Region acquired the Owner’s land for the future construction of the William Halton Parkway Project.

4The Claimants in submissions note that the land acquisition and expropriation proceedings giving rise to the Owner’s Costs Claim began in 2013 and unfolded over approximately a decade and involved several ‘starts and stops’ as a result of the Region’s fluctuating project timing and erratic compulsory property acquisition process.

5In spring 2024, the parties negotiated a full and final settlement of the Owner’s claims for compensation, which was signed in June 2024 (“Final Agreement”). The terms of the Final Agreement provided for an additional compensation payment in the amount of $3,300,000.00, exclusive of HST, and included the transfer of a parcel that had been used and altered by the Region during construction (“Severed Parcel”) to the Region as well as provisions for the future relinquishment of the permanent drainage easements.

6Under the Final Agreement, the Region also agreed to pay the Owner’s reasonable legal and other costs and related disbursements incurred to determine the compensation payable under the agreement in accordance with section 32 of the Act.

COSTS CLAIM ISSUES / ANALYSIS

Claimant’s Position

7On August 23, 2024, Ms. Lynch submitted a ‘Bill of Costs’ to the Region detailing the legal, appraisal, and planning costs in the amount of $382,263.54, including HST, incurred between December 2013 and August 2024 to determine the final compensation (the “Bill of Costs”) and comprised as follows:

8The Claimant’s counsel argues that part of the legal costs described above – invoices from Thorsteinssons LLP – related to tax advice required due to the Claimant’s status as a “non-resident” for tax purposes under the Income Tax Act, R.S.C., 1985, c. 1 (5th Supp.), and was required and necessary throughout the process to obtain the documentation from the Canada Revenue Agency required by the Region to release the S. 25 Offer and the additional compensation payments as well as to finalize the terms of the final compensation under the Act. The Region disputes the Claimant’s entitlement for reimbursement of the costs of tax advice.

9The Claimant’s counsel further contends all costs claimed have been actually incurred and were determined for the express purpose of resolving the net compensation payable to the Owner. The Claimant’s counsel also notes that the total final compensation paid by the Region to the Owner in the amount of $6,490,000.00 is approximately double the amount initially offered by the statutory authority and far exceeds the amount in the Bill of Costs. It is maintained that the work of the Owner’s legal counsel, appraisers and planner over the decade long proceedings directly contributed to this significant increase in compensation paid to the Claimant.

Region’s Position

10The Region’s counsel created a table to describe the respective positions of the Parties on this matter – separating out the costs of tax advice – as follows:

11In summary, the basis for the Region’s position is:

(a) Reduction of the amounts claimed for the WeirFoulds LLP and Ruth Victor & Associates Inc. invoices to disallow costs that were unrelated to the determination of compensation owing to the Claimant as part of the Region’s Acquisitions – in part involving alleged unrecoverable costs relating to a hearing of necessity in respect of the Expropriation under section 7 of the Act;

(b) Reduction of the amounts claimed for appraisal costs to address unnecessary duplication between Integris/Altus and gsi/Robson; and

(c) Disallowance of all amounts claimed for the Thorsteinssons LLP invoices because all such costs were incurred in connection with tax advice obtained by the Claimant that was unrelated to the determination of compensation owing to the Claimant as part of the Region’s Acquisitions.

Key Areas of Dispute Between the Parties

Tax Advice Costs

12Recovery for reasonable tax advice costs in the amount of $46,387.94 is one key area of disagreement. Essentially, the Claimant’s counsel argues that without such recovery, the Owner will not be fully compensated in accordance with the substantial indemnity principle governing expropriation cases. In particular, counsel for the Claimant argues that:

The Supreme Court of Canada in the case of Smith v Alliance Pipeline Ltd. held that legal costs incurred to address incidental but necessary issues to determine the compensation payable in expropriation proceedings are compensable under section 32 of the Expropriations Act.

13The Supreme Court of Canada in Smith v. Alliance Pipeline Ltd 2011 SCC 7, [2011] 1 S.C.R. 160, (“Smith”) restored a decision of an arbitration committee established by private agreement to arbitrate disputes under the National Energy Board Act, R.S.C., 1985, c. N-7 (“NEBA”). In that case, an expropriation of land occurred to facilitate construction of a pipeline. The majority in Smith stated (below emphasis added):

…the Committee's decision is set out coherently and that its conclusions are entirely consistent with the statutory provisions it was bound to apply, notably ss. 75 and 99(1) of the National Energy Board Act, R.S.C. 1985, c. N-7 ("NEBA"). Section 75 expresses in statutory form the well-established principle that expropriating parties should be made economically whole "for all damage sustained by them by reason of [the expropriation]". In the same vein, s. 99(1) vests in Arbitration Committees a broad discretion in determining the incidental components of full compensation, which include "all legal, appraisal and other costs determined by the Committee to have been reasonably incurred [by the expropriated party] in asserting that person's claim for compensation".

14One disputed issue in Smith was whether legal costs include only items related to the expropriation proceeding. The relevant statutory provision is broadly similar to the equivalent provision in the NEBA (below emphasis added):

99. (1) Where the amount of compensation awarded to a person by an Arbitration Committee exceeds eighty-five per cent of the amount of compensation offered by the company, the company shall pay all legal, appraisal and other costs determined by the Committee to have been reasonably incurred by that person in asserting that person's claim for compensation.

15The key passages in Smith, often cited, support the principle of full recovery by expropriation claimants (below emphasis added):

53 Today, the principle of full indemnification appears explicitly in s. 75 of the NEBA, which provides, as I noted earlier, that a company "shall make full compensation ... for all damage sustained" by the expropriated owner. Parliament adopted this more comprehensive approach to indemnification by broadening the language of s. 99(1) from "costs of the arbitration" to "all legal, appraisal and other costs determined by the Committee to have been reasonably incurred by that person in asserting that person's claim for compensation".

54 This amendment must be presumed to signify a clear and considered decision by Parliament to allow Arbitration Committees to exercise their full discretion in seeking to make expropriated owners whole (Sullivan, at pp. 579-82), and the historical context validates this presumption.

55 Moreover, the NEBA operates within the broader context of expropriation law, both federal and provincial. As early as 1949, this Court acknowledged the vulnerable position of expropriated owners. In Diggon-Hibben Ltd. v. R., 1949 CanLII 50 (SCC), [1949] S.C.R. 712 (S.C.C.), at p. 715, Rand J. (Taschereau J. concurring) stated that no one should be "victimized in loss because of the accident that his land [is] required for public purposes". In the same case, Estey J., citing with approval the earlier reasons of Rand J. in Irving Oil Co. v. R., 1946 CanLII 44 (SCC), [1946] S.C.R. 551 (S.C.C.), affirmed the right of an expropriated person under the relevant clause "to be made economically whole" (p. 717; see K. J. Boyd, Expropriation in Canada: A Practitioner's Guide, (1988), at pp. 144-45).

56 More recently, in Dell Holdings Ltd. v. Toronto Area Transit Operating Authority, 1997 CanLII 400 (SCC), [1997] 1 S.C.R. 32 (S.C.C.), at paras. 20-22, Cory J. (speaking for six of the seven-member panel) reaffirmed the principle of full compensation. Dealing there with Ontario's Expropriations Act, R.S.O. 1990, c. E.26, Justice Cory held that the Act, a remedial statute, "should be read in a broad and purposive manner in order to comply with the aim of the Act to fully compensate a landowner whose property has been taken" (para. 23).

57 Like various provincial expropriation statutes, the NEBA is remedial and warrants an equally broad and liberal interpretation. To interpret it narrowly, as the respondent in this case suggests, would in practice transform its purpose of full compensation into an unkept legislative promise.

16However, here the question is whether such ‘full compensation’ must include the costs of tax advice as incurred here by the Owner. That was not dealt with expressly in Smith or Dell Holdings (cited above). The Claimant’s counsel argues that:

It was reasonable for the Claimant to seek legal advice and assistance with the drafting of the final terms of agreement, including the characterization of the amounts and timing of the transaction for the transfer of the Severed Parcel, to maximize the net compensation paid for the Region’s expropriation. Substantive revisions to the terms of agreement were made by the Claimant’s tax counsel that extended far beyond those suggested in paragraph 56 of the Region’s Submissions and included, but was not limited to, substantive redrafting and corrections to schedules to the settlement documentation provided by the Region.

17On the other hand, the Region’s counsel argues (below emphasis added):

The Region submits that the Tribunal must determine whether this assistance and the costs regarding the associated costs were “incurred by the owner for the purposes of determining the compensation payable”. The Region submits that any connection between the “clearance certificate” application, the time spent by Thorsteinssons LLP assisting the Claimant with it, and the Region’s Acquisitions is irrelevant because, for the reasons set out below, that connection is unrelated to the determination of compensation owing to the Claimant… The Region submits that there is no evidence, in the voluminous Claimant’s Submissions on Costs or otherwise, that Thorsteinssons LLP’s assistance regarding the “clearance certificate” application was “required and necessary” to “finalize the terms” of the compensation owing to the Claimant… Neither the Claimant’s non-resident status nor the “clearance certificate” application, and the time spent by Thorsteinssons LLP assisting the Claimant with it, had any impact whatsoever on the quantum of the Section 25 Funds or the Settlement Funds. None of the appraisers retained by the Claimant and the Region relied on the Claimant’s non-resident status when assessing the compensation owing to the Claimant…

The Claimant did not seek increased compensation for the Region’s Acquisitions because of her non-resident status (or for any tax-related reason) … Similarly, the Region did not take the position that lesser compensation was warranted because of her non-resident status when it was determining the quantum of the S. 25 Offer or when negotiating the quantum of the Settlement Funds… The Region submits that there is no evidence, in the Claimant’s Submissions on Costs or otherwise, that the Canadian government’s changes to the capital gains inclusion rate had any impact on the quantum of the Settlement Funds. The Claimant did not seek increased compensation from the Region because of these impending changes, nor is there any evidence that the advice provided by Thorsteinssons LLP modified the Claimant’s approach to negotiations with the Region…The Region admits that…[certain]… revisions to the Final Agreement were made after Thorsteinssons LLP became re-engaged. However, the Region denies that this minor change to the characterization of the Settlement Funds is in any way related to the determination of their quantum. As set out above, the quantum of the Settlement Funds was unaffected by this revision…

18The Region also pointed out that Thorsteinssons LLP incurred approximately $11,000 in legal fees from June 5, 2024, onwards, after the Claimant executed the Final Agreement on June 4, 2024, and rejects the claim that these fees could be recoverable as being related.

19Upon closer review of the information concerning the tax advice provided by Thorsteinssons LLP, and after careful consideration of the submissions made by both the Claimant’s counsel and counsel for the Region, the Tribunal is not satisfied that the full costs of that tax work can be seen as reasonably related to the obtaining of compensation under the Act under the principles set out above in Smith. On the other hand, it was reasonable for the Owner to seek tax advice in relation to the clearance certificate required by the Region in order to release funds to the Owner, and, more generally, as to her status as a non-resident and how it might impact her approach to the settlement and its quantum. The Tribunal determines that $26,000 is a reasonable amount in respect of the costs of the expert tax counsel provided to the Owner.

Reductions to WeirFoulds LLP Invoices

20The Region seeks a reduction of $17,579.97 from the WeirFoulds LLP invoices on the basis that some of those costs relate to a hearing of necessity (which never transpired), to matters involving a Superior Court application concerning title issues relating to the Subject Property, and to tax advice.

21The Owner opposes the above-requested reductions arguing that it has already made reductions to address unrelated costs and that the Superior Court matters were necessary part of the effort to seek compensation under the Act.

22After thoroughly reviewing the dockets referred to by the Region’s counsel at Tab 5 of its Response, the Tribunal agrees that a portion of the reductions sought as described in paragraph [20] above is warranted. However, the Tribunal determines that the proper reduction should be for $7,000 only and that the resultant amount of $10,579. is reasonable.

Reduction of Appraisal Costs

23The Region seeks to reduce the amount claimed by the Owner for appraisal costs by $23,028.93 on the basis that (a) appraisal expenses in 2016 were unwarranted since the Expropriation did not proceed then, and (b) duplicative appraisal efforts and resultant expenses were incurred from 2019 onward. The Region also points out that it was not aware of certain early appraisal work done nor the costs of same until the Claimant submitted them as part of its Costs Claim on this motion. Thus, the Region posits that this work could not have been relevant to the Owner’s pursuance of compensation under the Act.

24Counsel for the Claimant argues in reply that the appraisal efforts and expenses in 2016 were incurred directly as a result of the Region’s Notice of Application delivered in January 2016 – that application was not abandoned until April 2016. By then, the expenses had been incurred. An additional expense was incurred with respect to a 2015 appraisal report provided by the Region to the Owner as part of earlier pre-expropriation discussions regarding possible acquisition in lieu of a taking. Later, the Region recommenced its efforts which eventually led to the Expropriation.

25In the Tribunal’s view, it is difficult and impractical to parse and analyze each and every step taken by the Parties over a 10-year period before damages claims pertaining to an expropriation are finally settled. Each Party may make efforts and seek advice that ultimately may not be disclosed prior to such a settlement. This is particularly the case for an owner of land, such as the Claimant, with no prior experience in dealing with expropriation matters. Such landowners may require additional assistance beyond that, sought by a sophisticated expropriating authority.

26Upon review of the information available on this motion, the Tribunal is not prepared to disallow the appraisal expenses incurred in relation to gsi and Integris as argued in paragraphs 38 and 39 of the Region’s Response. In addition, upon careful review of the information and invoices submitted on this motion and in taking into account the arguments made by the Claimant’s counsel, the Tribunal is not persuaded that there was any unrecoverable ‘duplication of effort’ by Mr. Ward Lansink, another appraiser retained by the Owner.

27Therefore, there will be no reduction of the appraisal expenses set out in the Costs Claim.

Costs of Planning Reports/Analysis

28The Region seeks to deduct $2700 of the costs of planning analyses prepared by a land use planner, Ruth Victor, retained by the Claimant’s counsel to assist with the Owner’s claims. The Region argues that Ms. Victor’s work done in 2015 through 2017 pertaining to the redesignation of the Subject Property is unrelated to the Owner’s claims under the Act and was never part of any discussions between the Parties leading up to the settlement.

29In opposition, the Claimant argues that Ms. Victor’s reports were delivered by counsel to the Region’s lawyers and relied upon during settlement negotiations. Ms. Victor’s planning inputs were also considered by the Owner’s appraiser, Mr. Lansink, and were clearly part of the overall effort to pursue the compensation claim under the Act. The Tribunal agrees.

30After review of Ms. Victor’s invoices, her reports, and after careful consideration of the Parties’ submissions on this motion, the Tribunal is unconvinced that the $2700 reduction sought by the Region is justified.

Interest on Costs Entitlement

31The Claimant seeks interest on its recovery of legal fees on the same basis awarded in a Decision of this Tribunal issued on January 24, 2025 in Kareem George Saikaley v Ottawa (City) OLT-21-001312, 2025 CanLII 5384 (ON LT) (“Saikaley”).

32However, counsel for the Region has pointed out that a Notice of Appeal was filed on March 14, 2025 with the Divisional Court in Saikaley – on the specific point of whether interest is payable on legal fees recovery under the Act or otherwise, in a costs adjudication.

33This Tribunal recognizes that under section 31 of the Act, parties have a broad right of appeal:

Appeals

31 (1) A decision or order of the Tribunal under this Act may be appealed to the Divisional Court within six weeks from the day the decision or order was served on the parties, on a question of law or fact or both. 2021, c. 4, Sched. 6, s. 48(7).

Extension of time for appeal

58 A judge of the Divisional Court may extend the time for appeal for such period as the judge considers proper. 2021, c. 4, Sched. 6, s. 48(7).

Powers of Court

59 On an appeal under subsection (1), the Divisional Court may,

• refer any matter back to the Tribunal; or

• make any decision or order that the Tribunal has power to make. 2021, c. 4, Sched. 6, s. 48(7).

Non-application

60 For greater certainty, this section does not apply with respect to any determination of the Tribunal under section 7. 2021, c. 4, Sched. 6, s. 48(7).

34The Tribunal strives for consistency wherever possible regarding the treatment of issues and questions of law that may arise in proceedings under the Act. Thus, in light of the appeal filed in Saikaley, the Tribunal will defer its ruling on whether the Owner is entitled to interest as is sought in submissions by the Claimant in this proceeding as follows (“Deferral”):

…the Claimant submits that interest on the legal fees should be awarded on the following basis:

i) from June 4, 2024, which was the date of the Final Agreement, to the date of the issuance of the Tribunal’s decision on this costs claim; and

ii) from the date of issuance of the Tribunal’s decision on this costs claim until the date of payment.

35The Deferral will be in effect until the Divisional Court has disposed of the appeal described in paragraph [31] above, following which the Tribunal will seek further submissions from the Claimant and the Region on this issue.

SUMMARY OF FINDINGS

36The Tribunal has concluded that the Costs Claim shall be reduced to $26,000 from the amount of $46,387.94 sought in respect of the costs of tax advice provided by Thorsteinssons LLP. The amount of $7,000 will be deducted from the WeirFoulds fees of $253,469.64 for the reasons described above in paragraphs [20] to [22] above. No other reductions as sought by the Region will be granted. This leaves a remainder amount of $354,875.60 to be paid by the Region.

37The question of interest payable on these costs will be the subject of the Deferral.

38The Claimant also seeks recovery of an amount in respect of this costs adjudication. However, this will require supplementary filings from the Claimant and, obviously, the Region must be permitted an opportunity to respond to those submissions – unless the Parties are able to settle that remaining matter without the Tribunal’s assistance.

ORDER

39THE TRIBUNAL ORDERS THAT:

1. The Regional Municipality of Halton (“Halton”) shall pay the amount of $354,875.60 to the Claimant Cynthia Lynch (“Claimant”) for her costs pursuant to section 32 of the Expropriations Act, R.S.O. 1990, c. E.26, as amended (“Costs”), together with post-judgment interest thereon at the prevailing post-judgment interest rate prescribed by the Courts of Justice Act from the date of issuance of this Decision;

2. The issue of whether any further amount for interest ought to be awarded in respect of the Costs shall be deferred to a date subsequent to the disposition by the Divisional Court of the appeal commenced in Kareem George Saikaley v Ottawa (City) OLT-21-001312, 2025 CanLII 5384 (ON LT);

3. The Claimant is entitled to be paid by Halton a reasonable amount in respect of the costs of this motion either as agreed upon by the Parties or as determined by this Tribunal following supplementary submissions delivered by the Parties; and

4. This Vice-Chair shall remain seized for the purpose of any matters arising with respect to the implementation of the above-noted Orders, including the determination of interest as described above in 1. and 2. and further costs as described above in 3.

“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.