Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 22, 2025 CASE NO(S).: OLT-25-000094

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

Expropriating Authority: The Regional Municipality of Peel Claimant: 2669972 Ontario Limited Subject: Hearing of Necessity Description: The Regional Municipality of Peel – West Caledon (Zone 7) Transmission Main and Storage Facility Project Property Address: Part of PIN 14255-0289 (LT), Part of Lot 22, Concession 4, West of Hurontario Street, Town of Caledon (Geographic Township of Chinguacousy), Regional Municipality of Peel, designated as Part 1 on Reference Plan 43R-41603 Municipality/UT: Caledon /Peel OLT Case No: OLT-25-000094 OLT Lead Case No: OLT-25-000094 OLT Case Name: 2669972 Ontario Limited v. Peel (Regional Municipality)

Heard: June 11 and 12, 2025 by Video Hearing

APPEARANCES:

Parties	Counsel
The Regional Municipality of Peel	Lou Fortini, Julie Lesage
2669972 Ontario Limited	Shane Rayman, Stephanie Fong

REPORT OF THE TRIBUNAL DELIVERED BY DOUGLAS S. COLBOURNE AND jackie denyes

Link to Final Order

INTRODUCTION

1This is the Report of a Hearing of Necessity held pursuant to s. 7 of the Expropriations Act, R.S.O. 1990, c.E26, as amended (the “Act”) requested by 2669972 Ontario Limited (“Owner”) of the property being Part of PIN 14255-0289 (LT), Part of Lot 22, Concession 4, West of Hurontario Street, Town of Caledon (Geographic Township of Chinguacousy), Regional Municipality of Peel(“the Region”) designated as Part 1 on Reference Plan 43R-41603 for the purposes of construction, maintenance and use of the West Caledon (Zone 7) Transmission Main and Storage Facility Project and Works ancillary thereto (the “Proposed Expropriation”) The portion of the lands are approximately 2 hectares in size.

2Pursuant to s. 6(1) of the Act, the Notice of Application for Approval to Expropriate Land was deemed served upon the Owner by the Municipality via registered mail on October 31, 2024.

3Pursuant to s. 6(2) the Owner requested a hearing to challenge that the expropriation is necessary.

4Pursuant to s. 7(5) of the Act, the purpose of the Hearing is for the Tribunal to “inquire into whether the taking of the lands or any part of the lands of an owner…is fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority” as the Act states. The Courts have interpreted this test to be whether the proposed taking is “reasonably defensible”.

5Further, s. 7(6) of the Act mandates the preparation and submission of a Report that contains a summary of the evidence and relevant legal arguments and considerations advanced by the Parties, the Tribunal’s findings of fact, and the Tribunal’s opinion on the merits of the application for approval to expropriate the subject interest in the land and the reasons for the opinion.

HEARING

6A two-day Hearing of Necessity was convened on June 11 and 12, 2025. Pursuant to s. 26.21 of the Act, as arranged by the expropriating authority, a qualified verbatim reporter was present throughout the two-day hearing to record, in writing, all oral evidence submitted before the Tribunal.

7Three expert witnesses were called and qualified on behalf of the Region:

a) Anthony Parente, P. Eng. General Manager, Water and Wastewater Municipality of Peel;

b) Mark Zamojc, P. Eng., GEI Consultants; and

c) Chris Campbell, MTP, MCIP, RPP, MRTPI

Two expert witnesses were called and qualified on behalf of the Owner:

a) Benjamin Jones, Sr. Land Development Manager LIV Developments Ltd.; and

b) Brittany Robertson, P. Eng.

8The following documents were entered as numbered exhibits at the Hearing:

1. Notice of Grounds;
2. Volumes 1 and 2 Municipality’s Book of Documents;
3. Claimant’s Book of Documents;
4. Witness Statement of Anthony Parente,
5. Witness Statement of Mark Zamojc;
6. Witness Statement of Chris Campbell;
7. Affidavit of Service of Megan Davis dated May 27, 2025;
8. Affidavit of Service of Brett Davis dated May 27, 2025.
9. Municipal Class Environmental Assessment filed by Brittany Robertson; and
10. Region of Peel’s Environmental Assessment Print-out.

9The Region asserts the Lands to be taken are required for the following objectives as set out in the Notice of Grounds:

1. to locate an elevated water tower within Pressure Zone 7 West to provide the required equalization storage, fire storage and emergency supply to maintain a satisfactory level of service;
2. to expand the water supply and storage capacity in Pressure Zone 7 to 12 Mega Litres by 2041 and 18 Mega Litres by 2051 to meet the requirements for planned development in southwest Caledon;
3. to provide necessary infrastructure to accommodate population growth within Pressure Zone 7 West, projected at 37,729 people and jobs in 2041 and 60,000 people and jobs in 2051 as directed by the Region’s Official Plan (“OP”) and Province;
4. to ensure a sufficient supply of potable water is provided to the Town of Caledon;
5. to enhance the water supply security of Pressure Zone 7 West; and
6. to implement the recommendations of the Region of Peel 2020 Water and Wastewater Master Plan for the Lake-Based System completed pursuant to the Municipal Class Environmental Assessment (“MCEA”) process.

10The Region submits the Owner’s lands have been identified as the optimal location for the water tower resulting from a thorough and comprehensive five-site selection process completed as Phase 2 of the MCEA for the Project.

11The Region asserts the proposed expropriation is fair, sound and reasonably necessary.

12The Region further asserts that throughout the MCEA process, the Region undertook significant efforts to ensure that all property owners were kept informed of the decision-making process that included direct engagement with the Owner specifically and holding one additional Public Information Session (“PIC”) than required by the MCEA guidelines.

13The Owner opposes the location of the Works and is concerned that the Region has prematurely started the expropriation process prior to the finalization of the MCEA for the Works thereby the location of the Works is still subject to public scrutiny and expert review.

14The Owner submits that the Region failed to apply the required criteria to its site selection process and failed to consider important factors intended to protect public funds and sensitive environmental issues.

15Further, the Owner is concerned that the proposed location of the Works (“Site D”), would occupy a majority of the frontage on Mississauga Road thereby hindering site accesses and cost efficiencies of future residential development and uses on the land.

Evidence and Arguments of the Expropriating Authority, the Region

Anthony Parente

16Mr. Parente testified that he is the General Manager of Water and Wastewater at the Region and has been since 2019. His prior positions at the Region include Director of the Wastewater Division, Manager of Capital Works, Water Transmission and Distribution, and Project Manager, Water and Wastewater Division. Mr. Parente has been involved with the West Caledon Storage Facility and Transmission Main Project (the “Project”) since it’s inception.

17Testifying to projected growth numbers spanning from 2021 to 2051 in Peel Region, it was Mr. Parente’s evidence that jobs and residents would expand from 2,188,432 to 3,349,997. Mr. Parente testified it is likewise projected that Zone 7 will grow from 8,010 to 59,904 jobs and residents representing a 648 percent increase. It was his evidence the existing water infrastructure in Zone 7 is insufficient to meet the anticipated growth.

18The Owner’s property is not currently within the 2051 urban boundary for the Region and any redevelopment of the property is long-term, and speculative as to if and when the site will be redeveloped and for what uses.

19Mr., Parente identified The Master Plan Water Strategy 2020 recommended the construction of the new elevated water tank in Zone 7 which will provide dedicated floating storage to the service area allowing for improved levels of service in emergency situations that is currently not available within Zone 7.

20When directed to the Region’s webpage in cross-examination that describes the planning process for sewers and roads, Mr. Parente referred to the Environmental Assessment Act (“EA Act”) at Tab 7 of the Region’s Book of Authorities to opine that the webpage is a general guideline for policies and principles rather than a strict process.

Mark Zamojc

21Mr. Zamojc is the Vice-President, Infrastructure Planning Practice Lead at GEI Consultants and Consultant Technical Lead who was retained by the Region to conduct the West Caledon Storage Facility and Transmission Main Schedule C Class Environment Assessment.

22Reviewing the technical purpose of the project, Mr. Zamojc indicated it is anticipated that the elevated tank site facility will include a bulk water station, maintenance and operation area, emergency overflow pond, driveway, parking and landscaping. Water will be pumped from the Alloa Reservoir and Pumping Station through a new dedicated transmission watermain to the water storage location, and a feeder main will be constructed to connect the storage option to the existing Zone 7 distribution system.

23As depicted in Tech Memo 2, Figure 4.1 of his report, Mr. Zamojc illustrated that the importance to the functioning of the system is the height of the elevated tank and Level of Service standard range of pressures. It was Mr. Zamojc’s opinion that the elevated tank top water level needs to be at an elevation of 327.7 metres (“m”) which can be achieved via a combination of the elevation of the ground and the height of the elevated tank.

24Speaking to cost evaluation for future transmission main and feeder main alignments, Mr. Zamojc identified Mississauga Road as the preferred route as it is central between the five short-listed sites evaluated in Tech Memo 3, Figure 5-4 and 5.5 and has the fewest number of constraints.

25Mr. Zamojc acknowledged in cross-examination that some aspects of the proposed Works including a bulk water filling station, a larger parking area and a Stormwater Management Pond of unknown size and depth have been omitted from the process. However, he recognized that these aspects can be achieved during the final design plans stage.

Chris Campbell

26Chris Campbell is the Vice-President, Infrastructure Planning at GEI Consultants retained by the Region to conduct the West Caledon Storage Facility and Transmission Main Schedule C Class Environmental Assessment. Mr. Campbell has served on the project from the outset as the Consultant Project Manager.

27Mr. Campbell proffered background evidence regarding the Class Environmental Assessment (“Class EA”) for the Project. He indicated the Class EA is anticipated to finalize in 2025 following which the Project will enter the detailed design phase over 2026 to 2027 with construction to take place over 2028 to 2029. He indicated the Class EA has followed the Principles of Environmental Planning which sets a framework for a rational, objective, transparent, replicable and impartial planning process which set out five key principles: consultation and engagement, consideration of a reasonable range of alternatives, identification and consideration of the effects of each alternative on all aspects of the environment, systematic evaluation of alternatives in terms of advantages./disadvantages and the provision of clean and complete documentation of the planning process to allow for “traceability” of decision-making.

28He indicated Phase 1 and 2 of the Class EA have been completed. Typically, upon completion of Phase 2, field studies on the preferred site would be conducted to refine the precise location and site layout of the Project Works. However, it is Mr. Campbell’s’ evidence that to date, the Class EA team has not received permission from the Subject Property’s owner to access the site to conduct the necessary field studies.

29To date, two in-person Public Information Centres have been held and the Class EA is currently undergoing Phase 3 to select the preferred conceptual design of the site and alignment. He testified that the MCEA does not require and would not result in the achievement of a 60 percent design rather only a conceptual site design will be produced at the end of Phase 3.

30As set out in his report, Mr. Campbell extensively outlined the selection and screening criteria considered in evaluating the preferred storage option which included inter alia avoiding impacts to the natural environment, social and cultural impacts minimizing impact to indigenous communities, protected countryside and prime agricultural area, policies relevant to federal, provincial and municipal legislation, technical feasibility to meet future servicing needs and financial considerations such as the length of transmission watermain and feeder main as well as the impact of tunneling construction costs.

31Testifying to the remaining steps in the process, Mr. Campbell indicated they are procedural as per the Class EA process, and that the most critical factors have been studied, assessed and weighed accordingly and will support the refinement of the design to ensure minimal overall impacts and identify mitigation measures to be used during construction.

32Turning to site alternatives, Mr. Campbell indicated during cross-examination that Site D was chosen as the most preferable site, acknowledging that Site D is the smallest parcel of land compared to all five sites on the short list of sites studied. It was the opinion of Mr. Campbell that the Region undertook the lengthy Class EA process to arrive at the best possible location.

33Questioning the urgency of the matter and expedited steps taken under cross-examination, Mr. Campbell confirmed that the Notice of Commencement for this project began in 2018 and over time, planning targets changed wherein elevated discussions for Zone 7 West began. Mr. Campbell indicated the Project would require the rigorous process of a Class EA study, gathering of information over an extended period of time and to engage with stakeholders regarding property issues. Mr. Campbell further acknowledged that the last PIC regarding this matter occurred in 2023.

34Outlining the five-point evaluation criteria that was undertaken, Mr. Campbell testified that the process included inter alia an assessment of natural environment, technical suitability and financial considerations which includes no loss of systematic tile drainage, the site is closest to the service area which benefits water quality operations and the transmission main, and feeder main alignments are the most direct route and will require the least capital cost. It was determined that all sites are technically viable and meet the minimum site requirements.

35Further, Mr. Campbell outlined in his report and through his viva voce testimony, the various Impact Assessments conducted on Site D that will be published in the Environmental Study Report at the completion of the MCEA process. These included:

A. Agricultural Impact Assessment by Colville Consulting confirming that Site D contained no agricultural impact through infrastructure, no tile drainage issues and no adjacent farm operations;

B. Cultural Heritage Screening Report by MHBC identified no cultural heritage features located on Site D

C. Geotechnical and Hydrogeological Desktop Study by Thurber Engineering Ltd. Found no significant preference between the five sites from a geotechnical and hydrogeological perspective as long as deep open-cut excavations were not performed;

D. Natural Heritage Existing Conditions by Matrix Solutions Inc. found no major natural environmental features, setbacks and source water protection on Site D and is not located within a vulnerable area and risk of groundwater contamination is low. Mr. Campbell further indicated it would be speculative to assume acquisition of additional lands would be taken when Highway 413 is constructed. Mr. Campbell also agreed that Site D is located nearest to a significant groundwater recharge area but that a pre-Public Information Centre was held with Toronto Conservation Authority. Mr. Campbell agreed his comparative analysis of alternative sites does not refer to nearby Aquifer and groundwater recharge as he has no qualifications as an Environmental Consultant and whether there will be a Stormwater Management Pond or where run-off would flow from. Mr. Campbell agreed that would be considered in future discussions with all the agencies.

36Considering cost considerations in the overall evaluation of all the Concept Sites, Mr. Campbell testified that Site D was highly preferrable over the other sites, as it required minimal approvals and permits, its central location on the site and its suitability for future servicing to the area.

37Mr. Campbell agreed the cost of running the transmission and feeder main is a consideration for valuation of site alternatives. However, regarding the specific elevation of the water tank and the costs for an extra two metres of water tower, Mr. Campbell suggested would be minimal. However, he could not provide evidence as it is site specific.

38Regarding location of the facility on the Property, he indicated the Region was willing to look at alternatives, but did not have any expertise to opine on what impacts and/or placement on the site would have on the remaining plans for present and future uses.

39Mr. Campbell confirmed that the Region has not completed detailed design plans for the site as of yet. However, once the Class EA is finalized, the Project will enter the detailed design phase regarding placement on the site.

Evidence and Arguments of the Owner, 2669972 Ontario Limited

Benjamin Jones

40Mr. Jones is the Director of Land Development of LIV Developments Ltd., which is a shareholder of the Owner. He testified having acquired the lands in February 2019 as they had been identified for potential urban expansion. Mr. Jones personally became involved in October 2024, when LIV Developments was in receipt of an application to expropriate the lands.

41Mr. Jones testified that he did not receive any Letters of Interest from the Region and specifically one dated January 13, 2023, sent out to all the Property owners as that was prior to his involvement. In addition, Mr. Jones did not receive a copy of Letter of Interest dated August 31, 2023, for Public Information Centre No. 2. He testified he was aware of an email chain dated May 2, 2023, wherein the Region was reaching out to arrange for a meeting to discuss the Subject Lands and specifics around potential property acquisition for the construction of a water tower. The Region, Mr. Jones indicated, was requesting access to the Property to complete studies.

42Mr. Jones acknowledged in cross-examination that he was not aware of any requests made by the Owner for compensation in lieu of entry onto the Subject Lands.

43Mr. Jones acknowledged in cross-examination that he was aware of amicable discussions of property rights between the Region and the Owner, but he could not personally confirm the scope of the discussions. Nevertheless, those discussions did not ultimately lead to any agreements. Mr. Jones further acknowledged that there were two requests to the Owners for access, and that the second email from the Owner reinforced that access to the Property is not permitted.

44Mr. Jones testified it is unclear to the Owners, at this time, if repositioning the water tower on the Subject Lands would mitigate the Owner’s damages or would compromise potential future development.

45Mr. Jones, through his viva voce testimony and witness statement, indicated the Owner is concerned that the proposed location of the Works would occupy a “majority” of the frontage that the Subject Property owns on Mississauga Road, and thereby would result in limiting the placement of site accesses for future development. Further, given the 100-m separation distance between the water tower and residential uses, the Owner is concerned for the potential negative impact (water tower shadowing) to the value of the future development due to the proximity and visuals of the Works – all of which is currently unknown and speculative.

46When cross-examined, Mr. Jones confirmed as a real-estate professional, he is familiar with Parcel Abstracts and was thereby directed to the Parcel Abstract Parts 1 and 2 which confirmed the total frontage of lands to be taken as 210 m. Mr. Jones agreed that the area required for the portion of the roadway is only 100 m in length out of 210 m, and not the “majority” of frontage as he earlier testified to. Irrespective, adding of the additional frontage to Mississauga Road does not alleviate the Owner’s concerns he opined. Mr. Jones e offered this would have to be studied once a design is available and that, at this point, he agreed, it’s “just too soon to tell with certainty what the impacts might be.”

47Mr. Jones confirmed in cross-examination regarding the reference in his witness statement to the expansion of the settlement area, and acknowledged the Subject Lands are not within the expanded settlement area shown on the maps “at the moment” nor are the Subject Lands zoned residential in the OP but likely zoned Rural or Agricultural. Mr. Jones did not provide any planning document to his assertions of contemplated expansions on the Subject Lands post 2051, but he agreed policies do change.

48Mr. Jones testified that the short list sites have similar status in terms of future redevelopment ambitions.

49Mr. Jones testified it was his understanding that the Ministry of Transportation would not be acquiring lands for the future Highway 413, and was not aware of where future utility and hydro corridors would be situate on the Property. Mr. Jones confirmed that to the best of his knowledge, the Owners have not been in discussions with any other entity for a study on the Subject Lands.

50In concluding his testimony, Mr. Jones agreed in cross-examination that while he is not an expert on the expropriation process, that matters of site efficiency, impact on value and sterilization could be addressed and considered by the Ownership group, through compensation, and could be addressed at a later date. Mr. Jones could not say if the discussions would be acceptable to the Ownership group or not.

Brittany Robertson

51Ms. Robertson was qualified as a P. Eng, Partner and Director of Development with C.F. Crozier & Associates Inc. Ms. Robertson is a land developer as well within the civil field, and is also qualified as a Civil Engineering Expert.

52Ms. Robertson was retained to provide a review of the ongoing EA process regarding the expropriation of land filed on the Subject Property. Ms. Robertson indicated her firm had no concerns with the conclusion of the Region’s 2020 Master Plan but rather, the focus is on the E.A Process., the progress made to date, and the conclusion that Site D is the preferred site for the water tower.

53Ms. Robertson opined that the EA Process is descriptive in that it must be completed in a certain order. Ms. Robertson identified and compared her key findings as follows:

a) The EA Proccess is not complete and the process including public consultation must be followed before selecting a preferred site with confidence. Making a conclusion before completing the required EA Proccess steps circumvents the ability to consider comments;

b) Inconsistencies regarding long-list screening may have eliminated potential sites that could be considered preferred and present significant cost savings to the project as compared to all sites evaluated.

c) Inconsistencies within how the guiding criteria are applied to the evaluation of alternatives have been noted. Many sites have been scored very closely, and these inconsistencies could change the preferred site selection. This should be revisited before advancing the EA Process and considering any land acquisitions for this project.

54Ms. Robertson identified that the governing document is prepared by the Municipal Engineers Association who are the enforcers of the Municipal Class EA Process document. Ms. Robertson testified the process is a five-phase process which is clearly mapped out in the EA Act to ensure adequate public consultation (“three PICs”) and all evaluations are set out in a clear manner, and are as follows:

a) Phase 1: Problem or Opportunity;

b) Phase 2: Alternative Solutions;

c) Phase 3: Alternative Design Concepts for Preferred Solution’

d) Phase 4: Environmental Study Report; and

e) Phase 5: Implementation 17.

55It was the evidence of Ms. Robertson that the EA Process is complete up to Phase 2 per the prescribed requirements within the EA 18. The EA Process has presented that an Elevated Tank with pumped storage is the optimal solution for servicing Pressure Zone 7 West.

56In-chief, Ms. Robertson was directed to a print-out of the Region’s List of Environmental Assessments. Ms. Robertson opined that according to the Region’s MCEA, Schedule C projects must go through a five-phase environmental assessment planning process as follows:

a. Phase 1: The Environmental Assessment (EA) process

b. Phase 2: The detail design phase

c. Phase 3: Property acquisition

d. Phase 4: Utility relocation

e. Phase 5: Tender and contract award.

57Ms. Robertson testified that under Phase 2 of the Region’s planning process, the detailed design must be 60 percent complete before determining how much property to buy. It is the opinion of Ms. Robertson that the Region has not followed its own process as set out on their website.

58The Region objected to this evidence, as it had not been included in the Owner’s Book of Documents as part of the Owner’s evidence, and left the Region in an unfair disadvantage as all the Region’s witnesses have testified.

59Ms. Robertson opines that conditions and ranking for determining the recommended site appear to be inconsistently applied in the areas of Site Area and Site Elevation, Long-List Screening Technical Feasibility having eliminated potential sites, Site Alternative Locations, and Supporting Documents and Technical Memos as follows:

Site area: the ideal site was increased to 2.0 from 1.5 ha and as a result, candidate sites that met the actual ideal site size were eliminated;

Site Elevation: The minimal reasonable site elevation required for the project is now 260m when 259.1 to 289.16 could achieve the required solution. Ms. Robertson did understand that additional heights are less desirable and that she could not testify to specific candidate sites that were ruled out because they did not meet the project 260 m. Ms. Robertson agreed that one cannot look at site elevation and the cost of transmission and feeder mains in isolation.

Long-List Screening inconsistencies: How the EA criteria have been applied throughout the EA process, candidate sites that could reduce the project cost and meet the technical requirements would have been eliminated in some concept areas which would have resulted in shorter lengths of transmission and feeder mains equating to reduced costs for the Works.

Site Alternative Locations: Site C scored within 2 points of the preferred location and should be re-evaluated as it could change the outcome of the preferred site.

Inconsistent supporting documents and technical memos: The evaluation currently reflects outdated information and should be re-evaluated accordingly.

60Speaking to the order of magnitude of the acquisition, Ms. Robertson suggested cost savings in 10’s of millions of dollars could be achieved by selecting a site closer to the Alloa Reservoir and Pumping Station. Ms. Robertson compared sites A, B, C, D and E that were conservatively cost evaluated equally through a short list screening.

61In her concluding remarks overall, Ms. Robertson had no concerns with the Region’s 2020 Master Plan, and agreed that water storage is necessary to support the anticipated growth to the 2051 horizon.

62When queried in cross-examination, Ms. Robertson testified she has never represented public sector clients and is currently assisting a proponent with a MCEA for a water treatment plant. Ms. Robertson confirmed she had no expertise in the design of waste and wastewater storage.

63Ms. Robertson opined she had reviewed the Region’s materials in their entirety that were provided over two months ago which formed the basis for her comments in her written report. Ms. Robertson did not consider the Region’s reply in her witness statement and indicated, having had the benefit of hearing Mr. Campbell’s evidence, nothing was persuasive to change her testimony.

64In cross-examination, Ms. Robertson agreed that if the EA were completed and some inconsistencies were found to be correct, the Region “may” identify another property, not “will” identify another property.

65Having gone through a thorough analysis of the EA Process and thousands of pages of reports, despite the clarity of her criticism, Ms. Robertson did not suggest an alterative site in her analysis. Ms. Robertson agreed the EA Process and MCEA is a wholistic exercise, a multi-faceted program, and a dynamic complex process creating many variables to consider, and not one factor alone significantly outweighs any other factor.

66Ms. Robertson further agreed in cross-examination that her report and witness statement does not claim to be a comprehensive analysis of the options available to the Region.

67Ms. Robertson agreed in cross-examination regarding consequences of not following the Region’s self-imposed set of expectations, and recognized the Region, as the expropriating authority in this case, who has a number of hats to wear, and if they choose to waive their own process, she could not comment, but felt the taxpayers would have a view on that.

68Ms. Robertson acknowledged the EA Process is inflexible and very prescriptive and legislation would trump policies. When asked if the Act were to permit a course of conduct or activity, it is expected that the policies would respect that permission. Ms. Robertson agreed to the fact that the Act does not specifically prohibit expropriation and agreed that nothing prohibits property acquisition prior to the completion of an EA. However, it was the opinion of Ms. Robertson that the Region must complete 60 percent of the design prior to acquiring lands, and that would be considered a prohibition. Ms. Robertson agreed in cross-examination that she interpreted a pre-condition as a prohibition of “can” or “cannot” be done and added the caveat that she was not a lawyer.

69Ms. Robertson agreed in cross-examination that for the Region to undertake to present to the public for feedback in Phase 3, a design concept would be presented for an underlying recommended property, as one does not typically design in the abstract. Further, to proceed to design, the Region would have to have a good understanding of relevant conditions regarding site and area elevations, soil conditions and topography.

70Ms. Robertson suggested, in the alternative, a preliminary functional design for the site could be undertaken, and would be helpful to move forward to Phase 3. She testified that a level of design that the Region needed to reach is typically a 30 percent milestone.

71Ms. Robertson agreed with the caveat that criteria are applied consistently including the use of land to justify future growth, that water and wastewater transmission storage is a complex endeavour tended to be a long-term solution with significant investment intended to endure many generations, and therefore it is beneficial to place this kind of infrastructure in a location that serves immediate and long-term needs.

72When asked to opine on the suitability of an alternative site, in re-examination, Ms. Robertson could not confidently recommend a specific site but suggested due to the sites being scored closely, the sites should be screened with the same analysis to see if there is any negligible difference in cost savings.

FINDINGS OF FACT

73The Tribunal finds the subject taking is due to the crucial need for a dedicated water tower in an area where there is none currently, to service the growth targets anticipated for Zone 7 West in a building horizon of 2051.

74The Tribunal finds that the Property owners were kept informed of the decision-making process, and PICs through an email exchange with a smaller shareholder group and nonetheless, the Region was refused access to the Property to make assessments and concept design decisions.

75The Tribunal finds, based on the evidence, that Site D is best-suited to accommodate an elevated storage tank from the short list of sites studied through the MCEA process to date. These of which have included extensive studies respecting Agricultural Impact Assessment, a Cultural Heritage Screening Report, a Geotechnical and Hydrogeological Desktop Study, a Natural Heritage Existing Conditions Report together with public consultation.

76The Tribunal finds that no other specific alternative site on the Subject Lands has been definitively suggested through the testimony of the Owner’s Experts.

77The Tribunal finds that the possible impacts on value and sterilization of the Subject Lands can be dealt with through the compensation process.

78The Tribunal finds the Region and the Owner’s witness, Ms. Robertson, agree that the EA Act permits a proponent to acquire property rights (including expropriation) in advance of a completed MCEA (EA Act, ss.1(7) and 15.1.2(1)(b)).

79The Tribunal finds that the Region has no requirement to achieve 60 percent design before acquiring property.

80Court Decisions such as Parkins v. The Queen in right of Ontario et al. 1978 CanLII 1254 (ON CA), 19 O.R. (2d) 473 L.C.R. 327 determined the test that the inquiry officer must apply can be expressed as to whether the proposal is “reasonably defensible” in the achievement of the City’s Objectives.

81Further, the Court of Appeal in 1739061 Ontario Inc. v. Hamilton-Wentworth District School Board has expressed the general principle that it is not the function of the Expropriations Act to have reviewing bodies micromanaging an expropriating authority’s use of a property in achieving its project objects.

82Further, in Marissa Construction Ltd v. Toronto (City), 1998 CarswellOnt 5872, the Divisional Court stated that “some latitude has to be accorded to the expropriating authority and that the Court is not entitled to substitute its opinion for that of the expropriating authority”. The Court further found that the practicalities of major construction projects involve an inherent element of uncertainty, and that if there is some evidence to support the position of the expropriating authority, the expropriation can still be found to be “fair, sound and reasonably necessary.”

83Similarly, in Modasi v. Whitby (Town), (“Modasi”) 2024 CanLII 46418 paras 9, 12 and 25, the Tribunal also commented that it would be prudent for the Town to acquire the proposed taking of lands to meet construction project timelines at the outset, so that the Town is in the best position to fulfill any conditions or mitigation measures that may be required.

84Modasi further informs the Tribunal respecting the sizing and configuration of infrastructure required in the construction phase of a project, leaving any unknown specific nature of the land requirements to the permit phase of construction with the Conservation Authority and Ministry of Environment, Conservation and Parks.

ORDER

85The Tribunal orders that after considering the evidence of five expert witnesses over two days of hearing, the exhibits filed and the verbal and written arguments by Counsel, the Tribunal concludes that the proposal meets the test as set out in section 7(5) of the Expropriations Act that the proposed taking is “fair, sound and reasonably necessary in the achievement of the expropriating authority.”

86For the foregoing reasons, the taking attached to the Notice of Grounds is defensible in the achievement of the construction, maintenance and use of the West Caledon Zone 7 Transmission Main and Storage Facility Project and works ancillary thereto.

“Douglas S. Colbourne”

DOUGLAS S. COLBOURNE

VICE-CHAIR

“Jackie Denyes”

JACKIE DENYES

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.