- DATE: 20020322 DOCKET: C36500
COURT OF APPEAL FOR ONTARIO
IN THE MATTER OF THE EXPROPRIATION ACT, R.S.O. 1990, c. E. 26, as amended
RE:
THE MINISTRY OF TRANSPORTATION (Respondent/Respondent in appeal) – and JOHN DEVINE and RAYMONDE DEVINE (Claimants/Appellants)
BEFORE:
MCMURTRY C.J.O., CATZMAN J.A. and GILLESE J.A (Ad hoc)
COUNSEL:
John S. Doherty for the appellant
Paul Henry and Robert Lawson for the respondent
HEARD:
March 6, 2002
RELEASED ORALLY:
March 6, 2002
E N D O R S E M E N T
[1] This is an appeal by the Devines from an order of the Divisional Court setting aside an award of disturbance damages made by the Ontario Municipal Board in respect of land owned by the Devines and expropriated by the Ministry of Transportation.
[2] The Divisional Court set aside the award on the basis that there was no evidence upon which the Board could make a finding that the Divines had an intention to sell the land during the freeze period.
[3] With respect, we are of the view that the Divisional Court misapprehended the Board’s reasoning when it concluded that an intention to sell on the part of the owner was essential to a finding that disturbance damages should be awarded for delay. We are of the view that the sentence in question was not essential to the Board’s finding that disturbance damages should be awarded.
[4] In coming to our conclusion, we have reviewed the Board’s decision and findings of fact and have concluded that its chain of reasoning is as follows.
[5] The Board accepted the respondent’s calculation of highest and best use of the subject lands based on “potential commercial use”. The Board then found that disturbance damages were warranted because, from the date of the freeze up to the date of expropriation, the appellants were required to carry costs of the property. During the freeze period, the extent of the taking was not made clear. The Board made the express finding that “by delaying a precise delineation of the taking required, the authorities have imposed an unreasonable disturbance deserving of compensation.”
[6] The Board made a finding of fact that the freeze period was 38 months in duration.
[7] The Board accepted the evidence of the appellant on the carrying costs in that period.
[8] In its reasons, the Board then made the following statement:
Accordingly, the Board finds that the property could not have been severed and the remaining portion sold, assuming such an intention by the owner.
[9] It was this statement that the Divisional Court fastened upon when it ruled that, as there was no evidence to support a finding that the Devines intended to sell the land, the Board erred in law.
[10] The highest and best use of the land was found to be based on “potential commercial use”. There was no definition of that phrase in evidence before the Board. We do not accept the contention that the words “potential commercial use” necessarily mean that the subject land had to be held during the freeze period. It was open to the Board, therefore, to conclude that the appellant suffered unreasonable disturbance during the freeze period leading up to expropriation. Indeed Dell Holdings Ltd. v. Toronto Area Transit Operating Authority (1997), 1997 400 (SCC), 60 L.C.R. 81 (S.C.C.) makes it clear that damages resulting from delay when lands are expropriated are compensable, even though the damages arise before the actual expropriation.
[11] The appellants had the burden to prove that the damages they suffered were the natural and reasonable consequences of the expropriation and to prove the extent of the damages. The findings of the Board that damages were suffered due to the 38 months’ freeze and the quantification of those damages have not been overturned. As a result, the appellants are entitled to disturbance damages as awarded by the Board.
[12] The choice of language of the Board in the sentence quoted above is somewhat confusing. However, this comment does not derogate from the fact that the Board was entitled in law to award disturbance damages for delay and that it made the necessary findings of fact which were supported by evidence before it.
[13] As the Board acted upon proper principles, did not misdirect itself on any matter of law and arrived at a figure for compensation that is supported by the evidence, we are of the view that there were no grounds on which to interfere with its decision.
[14] In arriving at our opinion, we are informed by the principles recently enunciated by the Supreme of Canada in Dell, supra, at pp. 88-89:
The expropriation of property is one of the ultimate exercises of governmental authority. To take all or part of a person’s property constitutes a severe loss and a very significant interference with a citizen’s private property rights. It follows that the power of an expropriation authority should be strictly construed in favour of those whose rights have been affected.
[15] The appeal is allowed, the order of the Divisional Court is set aside insofar as it relates to the issue of disturbance damages and the Board’s award of $71,959.00 for disturbance damages is restored. The order of the Divisional Court is amended to provide that no costs shall be payable by or to either side. The appellants shall have their costs of the appeal, which we fix in the sum of $15,000.
“R.R. McMurtry C.J.O.”
“M.A. Catzman J.A.”
“E.E. Gillese J.”