Vincent v. Ottawa (City), 2008 ONCA 345

CITATION: Vincent v. Ottawa (City), 2008 ONCA 345

DATE: 20080502

DOCKET: C47755

COURT OF APPEAL FOR ONTARIO

SHARPE, GILLESE and BLAIR JJ.A.

BETWEEN:

LOUIS VINCENT

Plaintiff (Appellant)

and

THE CITY OF OTTAWA

Defendant (Respondent)

Charles M. Gibson for the appellant

Stuart J. Huxley for the respondent

Heard & released orally: April 25, 2008

On appeal from the judgment of Justice Paul F. Lalonde of the Superior Court of Justice dated August 29, 2007.

ENDORSEMENT

[1] This is an appeal from a judgment granting the respondent’s motion to dismiss for lack of jurisdiction the appellant’s action for compensation, interest, and exemplary damages in relation to lands taken from the appellant by the respondent’s predecessor, the Regional Municipality of Ottawa-Carleton (“Regional Municipality”).

[2] The appellant was the owner of a 5,530-sq. ft. parcel of land and associated right-of-way. In August 1989, the appellant discovered that the Regional Municipality had effectively taken his property without notice or compensation by excavating throughout the property to a great depth and installing a large sewer.

[3] The appellant contacted the Regional Municipality several times about the work on his land but received no response. In September 1989, he commenced an action against the Regional Municipality. In July 1991, he accepted the Regional Municipality’s offer to settle, which stipulated that he consented to the Regional Municipality’s acquisition of the land and the application of the Expropriations Act, R.S.O. 1990, c. E.26, and its procedures to resolve any compensation issues.

[4] By the terms of the settlement, the Regional Municipality conceded that it had taken possession of the land in July 1989. It assented to the deemed registration of a plan for expropriation under s. 9 of the Expropriations Act, thereby requiring it to deliver an appraisal and make an offer of full compensation within three months. The Regional Municipality further agreed to pay the appellant’s legal costs on a solicitor and client basis. Despite the settlement, and despite calls and letters from the appellant requesting action on the settlement, the Regional Municipality failed to take any of these steps and the appellant received no compensation for his land.

[5] The appellant’s land was formerly the dominant tenement to a right-of-way on an adjacent property known as Winter Garden, which was expropriated by the Regional Municipality in 1998 to expand a highway. The appellant requested the Regional Municipality to join him as a party to the Ontario Municipal Board (OMB) hearing to determine compensation for that taking, but the Regional Municipality refused.

[6] Having received no satisfactory response and no payment for his land, the appellant commenced the present action in May 2004 against the City of Ottawa—which succeeded the Regional Municipality in 2001—claiming compensation for his land, interest, and exemplary damages.

[7] The City filed a statement of defence stating that it would contest the Superior Court’s jurisdiction over the matter. However, the City took no steps to stay the action but rather proceeded to participate in mandatory mediation, discovery, and a pre-trial settlement conference. The settlement conference failed to resolve the matter. It was only then that the City shifted gears and requested that the matter proceed to the Board of Negotiation, a body mandated under the Expropriations Act and an optional precursor to OMB proceedings. When the appellant refused to engage in that exercise, the City brought its motion to dismiss the action for lack of jurisdiction.

[8] The motion judge granted dismissal essentially on the grounds that the appellant had agreed in the minutes of settlement to proceed under the Expropriations Act, and that the matter fell within the exclusive jurisdiction of the OMB.

[9] In our view, the motion judge erred by dismissing this action for want of jurisdiction. The respondent had 15 years and three distinct opportunities to avail itself of the Expropriations Act procedure had it wished to do so.

[10] First, and most obviously, it should have proceeded under the Expropriations Act in 1989 when it took possession of the appellant’s land. Its conduct amounted to an unauthorized trespass, and when it failed to heed the appellant’s request for compensation, the appellant was left with no option but to commence the first action.

[11] Second, when the appellant accepted the respondent’s offer to settle in 1991, the respondent presumably could have proceeded under the Expropriations Act. Again, it failed to do so despite requests from the appellant.

[12] Third, in 1998, the appellant invited the respondent to join him as a party to the Winter Garden expropriation hearing to fix compensation, but again the respondent refused.

[13] Given the respondent’s failure to implement the settlement and the consequent additional damages generated thereby, the appellant commenced the present action.

[14] We fail to see any basis for holding that the Superior Court lacks jurisdiction to entertain this action even if, under different circumstances, the OMB does have exclusive jurisdiction to deal with such a situation. The appellant’s action arises from the respondent’s failure to implement the settlement of a Superior Court proceeding that flowed from an action for the unlawful taking of lands. These are matters that fall squarely within the jurisdiction of the Superior Court.

[15] The respondent and its predecessor failed to implement the 1991 settlement over a 13-year period and then for 2 years fully participated in the present action, up to the point of an unsuccessful pre-trial settlement conference. In our view, this course of conduct disentitles the respondent to any right to now insist on proceedings under the previous settlement.

[16] Accordingly, we allow the appeal, dismiss the cross-appeal, and set aside the judgment dismissing this action for lack of jurisdiction. Costs to the appellant are fixed at $20,000 here and below, in addition to the $5,000 ordered by the motion judge, all sums inclusive of disbursements and GST.

“Robert J. Sharpe J.A.”

“E.E. Gillese J.A.”

“R.A. Blair J.A.”