COURT OF APPEAL FOR ONTARIO

CITATION: Rabbani v. Niagara (Regional Municipality), 2012 ONCA 280

DATE: 20120501

DOCKET: C54376

Blair, Lang and Hoy JJ.A.

BETWEEN

Alexandra Rabbani and Waheed Rabbani

Claimants (Appellants)

and

The Regional Municipality of Niagara

Respondent (Respondent)

Sean L. Gosnell, for the appellants

Paul M. DeMelo, for the respondent

Heard and released orally: April 24, 2012

On appeal from the order of Justice T. Maddalena of the Superior Court of Justice, dated August 29, 2011.

ENDORSEMENT

[1] The appellants’ farm property bordering on the Q.E.W. in the Grimsby area was expropriated for a service road extension in 2005. After protracted negotiations, the parties resolved appropriate compensation for the property and related matters at $1.3 million. The minutes of settlement between the parties provided for assessment of the amount payable to the appellants as reimbursement for their “reasonable legal, appraisal and other costs actually incurred by the owner for the purposes of determining the compensation payable” pursuant to section 32 of the Expropriations Act, R.S.O. 1990, c. E26.

[2] Assessment Officer Thomas conducted an assessment of the expropriation costs over an 11-day period. In a 1200-page decision in which he reviewed and incorporated a great deal of the evidence and jurisprudence, he allowed the costs in the amount of $367,514 and issued a Certificate of Assessment in that amount. It should be noted that this involved a considerable reduction from the amount initially claimed by the Rabbanis. The assessment officer then issued a Second Certificate fixing the costs of the assessment proceeding in the amount of $190,000, again representing a significant reduction in the amount claimed.

[3] The order provided that interest on the Second Certificate would be paid from March 3, 2009, the day of the OMB order giving effect to the settlement, rather than from April 5, 2011, the day of the second certificate. The Rabbanis concede that interest should only have been awarded from the latter date.

[4] The Region appealed both Certificates to the Superior Court of Justice. Maddalena J. further reduced the amounts of both Certificates by approximately 17% for the first Certificate and 5% for the Second. She did so, on the basis that in her view, the amounts as assessed were not “reasonable”, the criterion set out in s. 32 of the Expropriations Act.

[5] In our view, the Superior Court Justice erred in the manner in which she approached the appeal proceeding before her. In effect she conducted a rehearing and substituted her own view of what was “reasonable” for that of the assessment officer. This she was not entitled to do.

[6] The standard of review on an appeal from an assessment officer’s decision is well established. The order below is discretionary. The hearing is an appeal, not an opportunity for the reviewing court to rehear the assessment and come to its own conclusion as to what is reasonable, absent an error in law, misapprehension of the evidence, palpable and overriding error on a factual matter, or an assessment amount that is so unreasonable as to constitute an error in principle. The assessment officer’s decision was entitled to considerable deference absent such error. See Samuel Eng & Associates v. Ho (2009), ONCA 150.

[7] There is nothing in the reasons of the Superior Court Justice here to indicate that she applied her mind to the appropriate standard of review or undertook any analysis of the assessment officer’s reasons to determine whether he committed any of the errors mentioned above. That in itself is enough for the appeal to be allowed. Accordingly, we do not need to resolve the debate about whether the Superior Court Justice made factual errors in coming to her conclusion.

[8] The Region does not argue that the assessment officer made any error in principle and we can find none on the record. Nor can we say, given the assessment officer’s lengthy analysis of the evidence and appropriate jurisprudence, that the amounts he allowed for either Certificate were unreasonable.

[9] The appeal is therefore allowed, the order of the Superior Court Justice set aside, and the amounts ordered by the assessment officer reinstated, except for the issue of interest payable on the Second Certificate amount. That Certificate is amended to provide that interest shall be payable from April 5, 2011.

[10] Mr. Gosnell seeks costs on a substantial indemnity basis. Mr. DeMelo acknowledges that if he had been successful, he would have sought costs on the same scale, although he might have expected the court to award them on a partial indemnity basis. In our view, the appellants are entitled to reasonable costs on a substantial indemnity basis in order to give effect to the objectives in the Expropriations Act.

[11] Accordingly, we fix costs of the proceeding below at $15,000 all inclusive and the costs of this appeal at $15,000, all inclusive, payable by the respondent to the appellants.

“R.A. Blair J.A.”

“S.E. Lang J.A.”

“Alexandra Hoy J.A.”