The Corporation of the City of Windsor v. Paciorka Leaseholds Limited et al. [Indexed as: Windsor (City) v. Paciorka Leaseholds Ltd.]

111 O.R. (3d) 431

2012 ONCA 431

Court of Appeal for Ontario,

Doherty, LaForme JJ.A. and Turnbull J. (ad hoc)

June 22, 2012

Expropriation -- Compensation -- Determination of market value -- Expropriation scheme -- Ontario Municipal Board reasonably determining that expropriation scheme began in 1983 when respondents' lands were identified as environmentally sensitive and progressed to include reports, designations and plans developed between 1983 and actual taking of lands by City beginning in 2004 -- Board unreasonably failing to take into account possible negative effects on market value of land flowing from provincial government's 1996 Provincial Policy Statement ("PPS") -- PPS not part of expropriation scheme -- Board also erring in its assessment of injurious affection damages by failing to properly limit those damages to any diminution in value of lands caused by City's acquisition of respondents' other lands -- Any negative impact caused to value of respondents' remaining lands by existence of PPS could not be recovered as injurious affection damages as PPS was not part of expropriation scheme. [page432]

The respondents' lands were subject to various governmental actions between 1983 and 2002, designed to preserve the natural habitat in the area and protect endangered and threatened species. Parts of the lands were eventually expropriated by the appellant beginning in 2004. The respondents brought claims before the Ontario Municipal Board for the market value of the expropriated lands and for injurious affection damages in respect of the rest of the property. The respondents argued that the expropriation scheme began in 1983, when certain of the lands were identified as environmentally sensitive, and progressed to include the various reports, designations and plans developed between 1983 and the actual taking of the lands beginning in 2004. The appellant submitted that the expropriation scheme did not begin until 2002, when the appellant resolved to create a nature park, and that the various studies and designations were part of an independent process by which various levels of government were seeking to identify and protect endangered species. In particular, the appellant argued that the provincial government's Provincial Policy Statement ("PPS") in 1996, issued as part of a province- wide environmental policy, impacted negatively on the value of the land for development purposes and could not be regarded as part of the expropriation scheme. The Board held that the identification and designation process that commenced in 1983 led to the expropriation, and determined market value on that basis. The majority of the Divisional Court upheld that decision. The appellant appealed.

Held, the appeal should be allowed.

The Board was entitled to find that the expropriation scheme embraced certain government activities beginning in 1983 and culminating in the actual taking of the lands beginning in 2004. However, the Board's finding as to the temporal scope of the scheme did not fully determine the nature and extent of the scheme for the purposes of s. 14(4)(b) of the [Expropriations Act, R.S.O. 1990, c. E.26](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e26/latest/rso-1990-c-e26