CITATION: Shergar Development Inc. v. The City of Windsor, 2019 ONSC 2623
DIVISIONAL COURT FILE NO.: 071/18
DATE: 20190429
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Wilton-Siegel and Sheard JJ.
BETWEEN:
SHERGAR DEVELOPMENT INC.
Appellant
– and –
THE CITY OF WINDSOR
Respondent
John S. Doherty, Robert D. Aburto and Michelle T. Cicchino, for the Appellant
Stephen F. Waqué, Gabrielle K. Kramer and Andrew Baker, for the Respondent
HEARD at Toronto: March 13, 2019
REASONS FOR JUDGMENT
Wilton-Siegel J.
[1] In this proceeding, the appellant, Shergar Development Inc. (“Shergar”) appeals a decision of the Ontario Municipal Board (the “Board”) dated January 24, 2018 (the “Rehearing Decision”) arising out of a 1998 expropriation by the respondent City of Windsor (the “City”). At issue in the appeal is the Board’s award of interest and costs pursuant to the Expropriations Act, R.S.O. 1990, c. E.26 (the “Act”). Shergar seeks the reinstatement of an earlier decision of the Board dated May 25, 2016 (the “Initial Decision”) with respect to these issues.
Factual Background
[2] Shergar acquired two parcels of land from the Canadian Pacific Railway Company (the “CPR”) on December 8, 1995 for a total consideration of $750,000. The first parcel extended along the Detroit River and comprised 5.7 hectares (the “Subject Lands”). The second parcel was a narrow strip of land comprising 2.4 hectares previously utilized as a railway corridor by the CPR (the “Railcut Lands”). CPR took back a mortgage in the amount of $562,500 secured on both parcels of land bearing interest at 10% per annum calculated semi-annually (the “CPR Mortgage”). At the time of the purchase, Shergar apparently held the mistaken belief that the two parcels of land were contiguous or that there was access to the Railcut Lands by means of a right-of-way.
[3] The City expropriated the Subject Lands for completion of a waterfront park (the “Expropriation”) on April 29, 1998 (the “Valuation Date”) by registering a Plan of Expropriation against the Subject Lands. Shergar retained ownership of the Railcut Lands. On May 1, 1998, the City served Shergar with a Notice of Possession effective August 17, 1998.
[4] On December 21, 1998, the City served a joint offer of compensation on Shergar and the CPR in the amount of $500,000 in accordance with s. 25(1) of the Act (the “Section 25 Offer”). Shortly thereafter, on January 12, 1999, Shergar’s then counsel advised that it would accept the without prejudice Section 25 Offer and make arrangements with the CPR to sign the acceptance of offer.
[5] The City responded on January 14, 1999, inquiring as to the quantum of the CPR’s security interest. Shergar did not provide this information. Shergar has maintained throughout these proceedings that it was not required to provide an allocation of the compensation as between itself and the CPR and that an allocation was irrelevant. The City says that it was unable to make payment of the Section 25 Offer because it was unable to obtain such an allocation given Shergar’s refusal to provide the necessary information.
[6] On June 9, 1999, the City requested that the Board of Negotiation (the “BON”) set a date to negotiate the compensation payable since the City was unable to get a response to its request for an allocation from Shergar.
[7] The BON set August 26, 1999 as the date for the negotiation. At that time, Shergar advised that it would be commencing proceedings to challenge the Expropriation. Initially, Shergar proposed to challenge the Expropriation on the basis that the City unlawfully expropriated a federal undertaking. It appears from the evidence before the Board that Shergar was not anxious to proceed to a determination of compensation at the BON as it was awaiting the results of an appeal to the Federal Court of Appeal (discussed below), which Shergar believed would impact the validity of the Expropriation.
[8] On January 6, 2000, Shergar’s counsel advised the BON that it had commenced an application in the Superior Court to challenge the Expropriation. Shergar’s counsel stated that the application would be served before January 21, 2000. Shergar did not, however, serve an application within this timeframe.
[9] Shergar had participated in 1998 in a hearing before the Canadian Transportation Agency (“CTA”) arising out of a complaint by the City against the CPR. In this proceeding, the CTA determined that the railway works on the Subject Lands were not a federal undertaking. The decision of the CTA was appealed to the Federal Court of Appeal (the “FCA Appeal”). Shergar was a respondent in that appeal. On September 29, 2000, the Federal Court of Appeal upheld the CTA’s finding that there was no federal undertaking on the Subject Lands at the time of abandonment of the railway on those lands.
[10] In January 2001, Shergar commenced its application in the Superior Court challenging the Expropriation on the basis that it was ultra vires the City and in bad faith (the “Superior Court Action”). The Superior Court Action was the subject of a 20-day trial in 2004. In a decision dated February 18, 2005, Shergar’s action was dismissed. The court held that the Expropriation was valid and that Shergar’s claims of bad faith were without merit. Shergar’s appeal of that decision was rejected by the Court of Appeal on September 28, 2007. The City was awarded costs in the Superior Court Action in the amount of $542,692.51, with post-judgment interest, in respect of the trial, as well as additional costs of $40,000, with interest from September 28, 2007, in respect of the unsuccessful appeal.
[11] Shergar continued to pay the contractual mortgage payments owing under the CPR Mortgage from the date of expropriation to October 9, 2007. From and after that date, no further mortgage payments were made.
[12] Rather than proceeding to a determination of its claim for compensation under the Act, Shergar then brought a professional negligence claim against the solicitors who had acted for it on the purchase of the Subject Lands from the CPR. This claim was asserted in a Statement of Claim in the Superior Court that was issued on April 25, 2008. The Statement of Claim was amended on May 21, 2008 to state that Shergar was holding its expropriation claim in “abeyance” pending resolution of this civil claim. This civil claim was resolved by an agreement dated May 10, 2011, pursuant to which the action was dismissed by a consent order.
[13] Shergar issued its claim for compensation under the Act on July 5, 2013, after the issuance by the CPR of its own claim for compensation in respect of the CPR Mortgage on April 26, 2013 and the filing of the City’s reply in respect of that claim on June 21, 2013.
[14] Prior to the hearing of this proceeding, the City made individual offers of settlement to the CPR and Shergar.
[15] On June 2, 2015, the City made a formal offer to settle Shergar’s claim for compensation for its interest in the Subject Lands (the “Rule 49 Offer”). The City submits that the Rule 49 Offer was equivalent in value to $1,208,155.98 at that time. Under the Rule 49 Offer, the City offered to forgive the outstanding costs in the Superior Court Action and the appeal of the decision therein, which it valued at $542,692.51 and $40,000, respectively, and to obtain a discharge of the CPR Mortgage, which it valued at $766,825.36 as of February 27, 2015.
[16] The CPR accepted the offer of $400,000 made to it. Pursuant to the settlement with the CPR, the City obtained an assignment of all of the CPR’s rights to compensation as determined by the Board. Shergar did not accept the Rule 49 Offer and proceeded with the hearing.
[17] The hearing to determine compensation for the Expropriation commenced in February 2016 before a panel of members of the Board (the “Initial Board”). At the opening of the hearing, the City filed the settlement with the CPR as an exhibit in the proceeding.
[18] The City tendered evidence regarding the outstanding amount under the CPR Mortgage as at the Valuation Date, being the date of expropriation of the Subject Lands, and the allocation in value between the Subject Lands and the Railcut Lands that allowed for a determination of the market value payable to Shergar. Shergar continued to refuse to provide the City with its position as to the allocation of compensation to the CPR or to disclose any monies exchanged between them after the Valuation Date, and led no evidence on this point.
[19] In the Initial Decision, the Initial Board concluded that the market value of the Subject Lands was $710,000, in accordance with the City’s appraisal evidence. The Initial Decision is discussed in greater detail below.
[20] While successful on the issue of market value, the City sought a review of the Initial Decision pursuant to s. 43 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 (the “OMBA”) on the issues of interest and costs (the “Review Request”). The City asked the Board to review three issues that the City considered to be incorrect or unclear in the Initial Decision. On December 8, 2016, the review panel issued a decision (the “Review Decision”) granting the request for a review. The Review Decision is also discussed in further detail below.
[21] The issues identified in the Review Decision were the subject of a further hearing on March 14 and 15, 2017. On January 24, 2018, the rehearing panel (the “Rehearing Board”) released the Rehearing Decision, which is the subject of this appeal. The Rehearing Decision is also described in detail below.
The Board Decisions
[22] The following is a brief summary of the relevant features of the three Board decisions regarding Shergar’s claim for compensation.
The Initial Decision
[23] In the Initial Decision, the Initial Board accepted the evidence of the City’s expert, finding the value of the Lands on April 29, 1988 was $710,000. In reaching that decision, the Initial Board rejected the appraisals of the two expert witnesses of Shergar who provided evidence that the value of the Subject Lands was $5,150,000 in one case and $3,937,000 in the other. The Initial Board further held that the analysis of Shergar’s appraisers was “inadequate, inappropriate and unreasonable” and expressed concern that neither had fulfilled their duty to provide the Initial Board with opinion evidence that was “fair, objective and non-partisan”.
[24] The Initial Board also accepted the City’s evidence that 80.78% of the outstanding CPR Mortgage should be allocated to the Subject Lands. On this basis, the Initial Board held that the principal and interest outstanding under the CPR Mortgage attributable to the Subject Lands was $443,167.18. This finding is not being appealed. The Initial Board then deducted this amount from the value of the Subject Lands to find that Shergar was owed $266,832.32 in respect of Shergar’s interest in the Subject Lands. This finding is also not being appealed.
[25] The Initial Board awarded interest at the statutory rate of 6% provided in s. 33(1) of the Act from the date of possession, being August 17, 1998, until December 31, 2007 and from July 5, 2013 to the date of issuance of the Initial Decision. The Initial Board awarded interest at the reduced rate of 3% for the period from January 1, 2008 to July 4, 2013.
[26] The Initial Board awarded the reduced rate on the grounds that Shergar’s litigation against its solicitors should not have delayed the filing of its claim under the Act. The Initial Board held that Shergar’s claim against its solicitors was the only explanation for the delay during the period January 1, 2008 to July 4, 2013 and that the claim had no bearing on the value of the Subject Lands.
[27] With respect to costs, the Initial Board noted that “[t]he City proposes further submissions on costs, that relate to the action, given that the proposed value exceeds the Section 25 Offer.” It also noted that Shergar responded by relying on s. 32(1) of the Act on the basis that the Initial Board awarded more than 85% of the Section 25 Offer. The Initial Board then held that Shergar was entitled to its costs of the Expropriation to be assessed by an assessor of the Superior Court.
The Review Decision
[28] The Review Board concluded that paragraphs 49 to 60 of the Initial Decision were “manifestly insufficient in analysis, reasons or findings necessary to establish the quantum of the award upon which interest is to be paid, the period over which interest is payable to the claimant and the disposition of costs”. In reaching this conclusion, the Review Board made the following three findings.
[29] First, the Review Board held that there was no clear finding in the Initial Decision as to the amount of the award upon which interest is payable. The Review Board concluded this amounted to a manifest error.
[30] Second, the Review Board concluded that the analysis in the Initial Decision was insufficient to explain the order for payment of interest. In the Review Board’s view, it was necessary to “delve into” the City’s submissions with respect to Shergar’s pursuit of the “collateral legal actions” and to decide whether they delayed the determination of compensation. The Review Board stated that an assessment of the relationship between these proceedings and the claim is “not at all apparent” from the Initial Decision.
[31] Third, the Review Board concluded that it was necessary to rescind the Initial Board’s findings on the matter of costs because, in the absence of a determination of the final award payable to Shergar, it was not possible to apply the statutory provisions in s. 32 of the Act or the provisions of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 related to offers to settle. In addition, the Review Board held that there was a clear error of natural justice in the Initial Board’s failure to allow the City the opportunity it sought to present submissions or to explore the prior offers before awarding costs.
[32] The Review Board considered that each of these findings satisfied the “convincing and compelling” threshold set out in Rule 115.01 of the Ontario Municipal Board Rules of Practice and Procedure in effect at the time of the Review Decision (the “OMB Rules”) entitling the Review Board to exercise its discretion to grant the requested review on the three matters addressed above. The Review Board also concluded that the most equitable approach to address the deficiencies in the Initial Decision set out above was to rescind the relevant paragraphs of the Initial Decision and direct that a new panel of the Board be convened to receive evidence and submissions on the three identified issues to arrive at a final determination.
The Rehearing Decision
[33] The Rehearing Board identified the following three issues for consideration:
What is the quantum of compensation upon which interest is payable to Shergar?
How is the amount of interest on the compensation awarded to be calculated?
How are costs to be disposed of?
[34] With respect to the first issue, the Rehearing Board stated that s. 33 of the Act was the key provision giving rise to the entitlement to interest. It observed that this provision “clearly states that each registered owner is entitled to interest on its proportional share of the Board’s award of market value.” The Rehearing Board found that the Initial Board had determined that Shergar’s interest in the Subject Lands was equivalent to $266,832.32 and that this finding had not been rescinded or appealed.
[35] The Rehearing Board held that ss. 1, 17 and 33 of the Act made it clear that “statutory interest is only to be applied to an owner’s proportionate interest in the compensation for market value.” It stated that the decisions of O’Leary J. in Sankey v. King (Township), 1973 619 (ON SC), [1973] 3 O.R. 580, 37 D.L.R. (3d) 504 (H.C.) (“Sankey”) and of the Ontario Land Compensation Board in Coltman v. Metropolitan Separate School Board (No. 2) (1975), 9 L.C.R. 197 (“Coltman”) supported that interpretation and that Shergar had failed to provide any authority for its interpretation. Given the finding in the Initial Decision that Shergar’s proportionate interest in the market value compensation was $266,832.82, the Rehearing Board awarded interest based on this amount.
[36] The Rehearing Board rejected Shergar’s position that interest should be applied to the full market value of the Subject Lands from which the value of the CPR Mortgage would be deducted. It held that this position would be contrary to the Act and would result in over-compensation to Shergar. In this regard, the Rehearing Board stated as follows:
… But for the settlement, CPR would be entitled to interest in the compensation on its interest in accordance with the Act. However, CPR assigned to the City its continued interest in the compensation claim. To the extent that CPR settled for less than its full interest in the compensation payable, the remaining Claimant, Shergar, is not entitled to a windfall receipt of that money.
[37] Accordingly, the Rehearing Board reasoned that, if the CPR had not settled with the City, the CPR would have been entitled to an award of $443,167.18, Shergar would have been entitled to an award of $266,832.82, and the statutory entitlement to interest “would then be applied to each claimant’s award of market value individually.”
[38] The Rehearing Board also held that Shergar misconstrued the meaning of s. 16 of the Act. It considered that “the ‘exclusion’ for security-holders in s. 16 does not mean that security-holders are not to be paid the interest entitlement under s. 33(1).”
[39] The Rehearing Board concluded that the present situation arose because of Shergar’s failure to provide an allocation of the CPR Mortgage as between the Subject Lands and the Railcut Lands as of the Valuation Date:
The present case was complicated by Shergar’s failure to provide an allocation of the mortgage with CPR as at the Valuation Date and its failure to accept the s. 25 Offer. Statutory interest is generally only applied to the underlying landowner’s interest because the expropriating authority can discern the value of a mortgage interest and make a s. 25 Offer jointly to the owner and mortgagee in accordance with their respective interests. The owner would normally accept the advance payment, pay off the mortgage balance with the mortgage being discharged prior to the owner advancing a claim for additional compensation.
[40] The Rehearing Board further observed that Shergar’s position would produce a perverse result:
If Shergar’s interpretation on this issue was to be accepted, claimants whose lands are encumbered by a mortgage with a large balance outstanding would have no incentive to accept the statutory offer and proceed to discharge the mortgage. They could simply avoid settling the outstanding balance under the mortgage until after the determination of compensation and then reap the windfall of an interest entitlement applied to 100% of the market value of the expropriated lands.
[41] With respect to the second issue, being the calculation of interest, the Rehearing Board awarded interest at the rate of 3% for the entire period to July 5, 2013 and at the statutory rate of 6% thereafter. In reaching this award, the Rehearing Board held that a key consideration under s. 33 is whether a claimant’s conduct caused a delay in the determination of compensation. In this case, the Rehearing Board found that “it is quite clear from the record that the City made all attempts possible to make an early payment of compensation to Shergar but that Shergar persistently resisted those efforts by pursuing groundless litigation.”
[42] With respect to the third issue, being the costs award in favour of Shergar, the Rehearing Board referred to its authority under s. 32(2) of the Act to make any order respecting costs where the amount awarded by the Board was “less than 85% of the amount offered by the statutory authority”.
[43] The Rehearing Board concluded that s. 32(2) does not cross-reference s. 25 of the Act in order to narrow the meaning of the “amount offered” to the City’s offer under s. 25. It observed that s. 32(2) did refer to s. 44(d) of the Act and that, in the circumstances, the omission of a reference to s. 25 should be presumed to have been deliberate for the purposes of the interpretation of s. 32(2). It concluded that “[o]ne must therefore presume that the legislature did not intend to limit the ‘amount offered’ to only mean the s. 25 Offer.”
[44] The Rehearing Board also concluded that Rule 141 of the OMB Rules provides for consideration of offers made subsequent to an offer made pursuant to s. 25 of the Act and that, if an offer to settle is made and not dealt with in the Act, the Rules of Civil Procedure apply. On this basis, the Rehearing Board held that it had the authority to award costs after any hearing and “in addition to specific provisions respecting expropriations, may also award costs against a party whose conduct has been vexatious, frivolous or unreasonable.”
[45] The Rehearing Board concluded that the Rule 49 Offer met the criteria pursuant to Rule 49 of the Rules of Civil Procedure, specifically r. 49.10(2), and was “certain, understandable, and open until the commencement of the hearing.” As mentioned, the Rehearing Board further concluded that it had the discretion to deny costs to a claimant and award costs to an expropriating authority under s. 32(2) of the Act.
[46] The Rehearing Board found Shergar’s conduct, viewed in its totality, to be a factor relevant to the exercise of its discretion. The Rehearing Board held as follows:
The Board notes that Shergar’s conduct in refusing to accept a reasonable offer to settle put the City to extraordinary costs by forcing the City to proceed to a two week hearing where Shergar led expert evidence which was not only rejected by the Board, but was held to be not “fair, objective and non-partisan”. This required the City to expend significant extra costs on its own experts to respond to a variety of groundless arguments advanced by Shergar respecting the development potential of the subject lands.
The Board finds based on the principles underlying s. 32 of the Act and Rule 49 of the Rules of Civil Procedure, and taking into account Shergar’s conduct in these proceedings that it should exercise its discretion to deny Shergar its reasonable legal, expert, and appraisal fees following service of the Offer and award costs to the City.
[47] The Rehearing Board rejected Shergar’s submission that Shergar is automatically entitled to costs by virtue of a decision of Vice-Chair Hussey dated February 19, 2016 made on a motion in this proceeding brought by the City for security for costs (the “Costs Decision”). The Rehearing Board rejected Shergar’s contention that paragraph 20 of the Initial Decision was a finding that the Costs Decision was res judicata on this issue. The Rehearing Board concluded that Shergar had failed to establish that the Costs Decision constituted a final decision on the same issue as was before it and, accordingly, the doctrine of issue estoppel also did not apply in the circumstances of this case.
[48] The Rehearing Board then rendered its costs award as follows:
The Board finds that the City made a valid Rule 49 Offer to Shergar and that there is no difficulty in interpreting the quantum of the offer and comparing same to the Board’s determination of compensation payable to Shergar. The Offer was significantly greater than the quantum of compensation awarded to Shergar and did not achieve the 85% threshold.
Accordingly, Shergar will be denied its costs from the date of the Offer made on June 2, 2015. Furthermore, the City will be entitled to its costs from this date forward. The assessment of costs shall be referred to an assessment officer of the Superior Court of Ontario for determination.
Shergar’s Grounds of Appeal
[49] In its Notice of Appeal, Shergar asserted four principal grounds of appeal as follows:
the Rehearing Board erred in its statement and application of the test for interest in s. 33 of the Act in the Rehearing Decision;
the Rehearing Board erred in its statement and application of the test for costs in s. 32 of the Act in the Rehearing Decision;
the Rehearing Board erred in holding that r. 49.10 of the Rules of Civil Procedure applied in this case and overrode the provisions of s. 32 of the Act; and
the Rehearing Board erred in failing to find that issue estoppel or res judicata applied to the determination of costs in the Rehearing Decision based on the Costs Decision.
[50] In its Notice of Appeal, Shergar also appealed the Review Decision in respect of the foregoing issues. However, at the hearing, Shergar advised the Court that it was no longer appealing the Review Decision in any respect.
[51] The third ground of appeal is effectively subsumed in the second ground of appeal. Further, in respect of the fourth ground of appeal, counsel for Shergar advised the Court that Shergar was not appealing the Rehearing Board’s rejection of its submission that it was “automatically entitled to costs” based on its position that the Costs Decision was a finding to which the doctrine of res judicata or issue estoppel applied.
[52] In addition, in the Notice of Appeal, Shergar also submitted that the Rule 49 Offer was vague such that the Rehearing Board should not have relied on it in making its costs award. It referred specifically to item #3 thereof which provides for a commitment to discharge the CPR Mortgage. Shergar says there is uncertainty regarding the amount of this commitment, given that the CPR Mortgage was secured against the Railcut Lands as well as the Subject Lands. Shergar did not place any emphasis on this ground of appeal at the hearing. In any event, it is rejected for the following reasons.
[53] The Rehearing Board found that the amount of the Rule 49 Offer was certain and accepted that the Offer was equivalent in value to $1,298,155.98 as at the date of the hearing. The Rehearing Board also found that there was no difficulty in interpreting the quantum of the Rule 49 Offer and comparing that amount to the Rehearing Board’s determination of the compensation payable to Shergar. Moreover, there was no offer to the CPR in the Rule 49 Offer as Shergar suggested. These are factual determinations which are reasonably supported by the evidence before the Rehearing Board. In respect of Shergar’s particular objection, the commitment in the Rule 49 Offer is clear and unequivocal – to pay whatever is necessary to obtain a discharge of all obligations outstanding and owing by Shergar to the CPR.
[54] Lastly, Shergar also argued that the assignment of the CPR Mortgage to the City pursuant to the agreement between these parties raised an issue of unfairness or conflict of interest. Shergar asserts that the City was both a complainant and a respondent in the proceedings before the Board. While Shergar raised this complaint at the hearing, it has not asserted a ground of appeal based on a denial of natural justice in these proceedings. I have therefore disregarded this assertion.
Jurisdiction of the Court and Standard of Review
[55] Shergar has appealed the Rehearing Decision pursuant to s. 31 of the Act, which provides as follows:
31 (1) An appeal lies to the Divisional Court from any decision or order of the Tribunal in accordance with the rules of court, except that the appeal may be taken at any time within six weeks from the day the decision or order was served on the parties, and the period of any vacation of the court shall not be reckoned in computing such six weeks.
(2) An appeal under subsection (1) may be made on questions of law or fact or both and the Divisional Court,
(a) may refer any matter back to the Tribunal; or
(b) may make any decision or order that the Tribunal has power to make.
[56] The issues in this proceeding involve the interpretation of the Act as well as mixed questions of fact and law pertaining to the quantum of interest awarded to Shergar. The Supreme Court has stated that the standard of review of issues of statutory interpretation involving the home statute of a specialized administrative tribunal is reasonableness: see Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, at paras. 54-56 (“Dunsmuir”); Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at paras. 27-28. I see no basis for departing from that standard in this case.
[57] Shergar accepts that the standard of review for the issues involving questions of mixed fact and law is reasonableness on the basis that the Act is a statute within the expertise of the Board. Shergar suggests, however, that the standard of review in respect of questions of statutory interpretation should be correctness. It relies for this position on the statement of the Divisional Court in Simone Group Properties Ltd. v. Toronto (City), 2013 ONSC 341, 108 L.C.R. 12 (Div. Ct.), at para. 14 (“Simone”).
[58] I do not agree that Simone stands for the proposition asserted by Shergar. In Simone, the issue was not one of statutory interpretation but whether the Board had applied the law as set out by the Supreme Court in Dell Holdings Ltd. v. Toronto Area Transit Operating Authority, 1997 400 (SCC), [1997] 1 S.C.R. 32, 142 D.L.R. (4th) 206 (“Dell Holdings”). The court in Simone stated no more than that a failure to apply the correct legal principle is an error of law that renders a decision unreasonable.
[59] Accordingly, I conclude that the applicable standard of review of the Rehearing Decision is reasonableness. The classic definition of the content of reasonableness is set out in Dunsmuir at para. 47 as follows:
In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Analysis and Conclusions Regarding the Grounds of Appeal
[60] As discussed above, this appeal has been reduced to a consideration of the following two issues:
whether the Board’s application of the test for interest in s. 33 of the Act in the Rehearing Decision is reasonable; and
whether the Board’s application of the test for costs in s. 32 of the Act in the Rehearing Decision is reasonable.
The Interest Award
[61] The Rehearing Board awarded interest pursuant to s. 33(1) based on the amount to be received by Shergar out of the market value of the Subject Lands, being $266,832.82. The Rehearing Board’s determination proceeded on the basis that such amount represented “the portion of the market value of the owner’s interest in the land” for the purposes of s. 33(1).
Applicable Provisions of the Act
[62] The following provisions of the Act are relevant for this issue:
1(1) In this Act,
“owner” includes a mortgagee, tenant, execution creditor, a person entitled to a limited estate or interest in land, a guardian of property, and a guardian, executor, administrator or trustee in whom land is vested;
“security holder” means a person who has an interest in land as security for the payment of money;
16 Where there are more separate interests than one in land, other than the interest of a security holder or a vendor under an agreement for sale, the market value of each such separate interest shall be valued separately.
17(2) Where land is subject to a security interest,
(a) the value of the interest of the security holder shall be determined in accordance with this section and section 20 and not otherwise; and
(b) the market value of the land shall be determined without regard to the interest of the security holder and the amount of such market value plus any damages for injurious affection shall stand in place of the land for the purposes of the security.
(3) Security holders shall be paid the amount of principal and interest outstanding against the security out of the market value of the land and any damages for injurious affection payable in respect of the land subject to the security, in accordance with their priorities, whether or not such principal and interest is due, and subject to subsections (4) and (5).
33 (1) Subject to subsection 25 (4), the owner of lands expropriated is entitled to be paid interest on the portion of the market value of the owner’s interest in the land and on the portion of any allowance for injurious affection to which the owner is entitled, outstanding from time to time, at the rate of 6 per cent a year calculated from the date the owner ceases to reside on or make productive use of the lands.
(2) Subject to subsection (3), where the Tribunal is of the opinion that any delay in determining the compensation is attributable in whole or in part to the owner, it may refuse to allow the owner interest for the whole or any part of the time for which the owner might otherwise be entitled to interest, or may allow interest at such rate less than 6 per cent a year as appears reasonable.
Shergar’s Position
[63] Shergar says that the portion of the market value of its interest in the Subject Lands is $710,000, not $266,832.82. It argues that the CPR did not have a separate interest in the Subject Lands for the purposes of s. 33(1). Accordingly, Shergar submits that the Board erred in applying this interpretation of s. 33(1) which it says was therefore unreasonable as a matter of law.
[64] Shergar’s position is summarized as follows. The value of a mortgagee’s interest is crystalized at the date of expropriation as the amount outstanding under the mortgage at that date. The interest entitlement of a mortgagee, as a “security holder”, is to be determined under ss. 17 and 20 of the Act in accordance with the contractual terms of the security and paid out of the amount of the market value of the land in priority to the landowner. A mortgagee is not entitled to any statutory interest under s. 33(1) after the expropriation date. Instead, a mortgagee must look exclusively to the mortgagor for payment in accordance with the contractual terms of the mortgage. On this basis, the owner’s interest in the lands for the purpose of s. 33 disregards the existence of any mortgage against the land. In the present circumstances, this would result in Shergar being treated as having 100% of the market value of the owner’s interest in the Subject Lands and being entitled to statutory interest under s. 33(1) on the full market value of the land. As mentioned, Shergar’s position implies that a mortgagee is not an “owner” for the purposes of s. 33.
Analysis and Conclusions
[65] This issue engages a pure matter of law, being the statutory interpretation of s. 33 – specifically the meaning of “owner” in that provision. The framework proposed by Shergar is not unreasonable and could have been adopted by the legislature. However, in my view, it is not the framework for the treatment of a mortgagee adopted under the Act. In my view, the determination in the Rehearing Decision that the interest payable to Shergar was to be calculated on its interest in the Subject Lands of $266,832.82 is not only reasonable but correct given the language of the Act.
[66] There is no dispute that ss. 17 and 20 of the Act require a valuation of the interest of a security holder, in this case a mortgagee, to be calculated as of the date of expropriation in accordance with the contractual terms of the mortgage, rather than on a market value basis. There is also no dispute that a mortgagee is to be paid the value of the mortgage out of the payment to the landowner for the market value of the land. However, these provisions do not address the position of a mortgagee in respect of interest and are not determinative of the issue as Shergar suggests.
[67] For this purpose, the definition of “owner” in s. 33(1) is pivotal. Section 1(1) of the Act provides that a mortgagee is included within the meaning of “owner”. There is nothing in s. 33(1) that displaces this definition. Accordingly, on the plain meaning of these provisions, a mortgagee is entitled to be paid interest on the mortgagee’s “interest in the land”, being the value ascribed to the mortgage under ss. 17 and 20. It therefore also follows that a landowner’s “interest in the land” must be the market value of the land less the amount of any interest of a mortgagee in the land.
[68] Shergar bases its argument on the language of s. 16 of the Act. However, the purpose of s. 16 is limited to directing that all interests in land, other than an interest of a security holder or a vendor, are to be valued separately on a market value basis. I do not see how the language of s. 16 supports Shergar’s position.
[69] As the Rehearing Board noted, its interpretation has been applied in the decisions of Sankey and Coltman. In each of these cases, the tribunal awarded interest calculated in respect of a landowner’s interest after deduction of the outstanding amount of a mortgage secured against the property, rather than in respect of the gross market value of the property. While Shergar argues for a different result, it has not provided any statutory basis for its position. In essence, it relies entirely on the wording of ss. 16 and 17 which, as mentioned, do not address the issue. Nor has Shergar provided any case law in support of its position.
[70] Shergar also suggests that, because the CPR did not receive any interest under s. 33(1), “a failure to apply interest to the entirety of the market value award results in a windfall to the City.” I do not accept this submission for the reason that any “windfall” to the City results entirely from the private agreement between the City and the CPR. In this regard, the City’s position is no different from the position of any other private party that might have acquired the CPR Mortgage prior to the hearing, including Shergar.
[71] Based on the foregoing, I conclude that the Rehearing Board’s determination that Shergar’s “interest in the land” for the purposes of s. 33(1) is the amount of $266,832.32 was reasonable.
Additional Issues
[72] Shergar also raised an alternative argument on this appeal. Shergar argued that, in the circumstances in which its “interest in the land” was held to be $266,832.32, it should be entitled to a credit for the mortgage payments that it made from the date of expropriation to October 9, 2007, when it ceased making payments on the mortgage. It relies on the proviso language in s. 17(6) of the Act and on the decision of the Board in Sankey for this proposition. I have not addressed this alternative argument for the following reasons.
[73] It is not disputed that this argument was raised for the first time on this appeal. It was not included in any submissions, written or oral, before either the Initial Board or the Rehearing Board. In my view, it cannot be raised now for the reason that there has been no opportunity for the City to address the factual context in which this claim is asserted. For example, it is possible that Shergar and the CPR may have reached an understanding regarding the allocation of the interest payments between the Subject Lands and the Railcut Lands which would be relevant for this argument. Further, it would appear that separate issues could arise in respect of the principal and interest components of each mortgage payment for which factual evidence is relevant. More significantly, the appropriate manner of making this argument would have been a separate claim for loss arising as a result of the Expropriation. Shergar did not, however, assert any such claim in this proceeding. It cannot be asserted for the first time on this appeal.
[74] In addition, Shergar suggested, but did not argue at any length, that the Rehearing Board’s award of interest was unreasonable to the extent that it lowered the interest rate paid from 6% to 3% for the period from August 17, 1998, being the date of possession, until December 31, 2007. In any event, in my view, there was ample evidence before the Rehearing Board regarding Shergar’s failure to prosecute its claim during this period to support the reasonableness of this decisions.
The Costs Award
[75] The Board awarded costs against Shergar for the period after July 4, 2013 on the basis that the Rule 49 Offer constituted “the amount offered by the statutory authority” for the purposes of s. 32 of the Act. On this basis, given the finding of the market value of the Subject Lands, s. 32(2) governed the award of costs. The Rehearing Board also considered that s. 32(2) provided it with the authority not merely to reduce the costs payable to Shergar but to require Shergar to pay costs to the City in respect of the period commencing July 4, 2013 for the reasons stated above.
[76] There are therefore two issues to be considered in respect of the costs award in the Rehearing Decision:
the Rehearing Board’s determination that the Rule 49 Offer constituted “the amount offered by the statutory authority”; and
the authority of the Review Board to order costs against Shergar.
[77] I will address each in turn after setting out the relevant statutory provisions.
Applicable Provisions of the Act
[78] The following provisions of the Act are relevant for these issues:
25 (1) Where no agreement as to compensation has been made with the owner, the expropriating authority shall, within three months after the registration of a plan under section 9 and before taking possession of the land,
(a) serve upon the registered owner,
(i) an offer of an amount in full compensation for the registered owner’s interest, and
(ii) where the registered owner is not a tenant, a statement of the total compensation being offered for all interests in the land,
excepting compensation for business loss for which the determination is postponed under subsection 19 (1); and
(b) offer the registered owner immediate payment of 100 per cent of the amount of the market value of the owner’s land as estimated by the expropriating authority, and the payment and receipt of that sum is without prejudice to the rights conferred by this Act in respect of the determination of compensation and is subject to adjustment in accordance with any compensation that may subsequently be determined in accordance with this Act or agreed upon.
32 (1) Where the amount to which an owner is entitled upon an expropriation or claim for injurious affection is determined by the Tribunal and the amount awarded by the Tribunal is 85 per cent, or more, of the amount offered by the statutory authority, the Tribunal shall make an order directing the statutory authority to pay the reasonable legal, appraisal and other costs actually incurred by the owner for the purposes of determining the compensation payable, and may fix the costs in a lump sum or may order that the determination of the amount of such costs be referred to an assessment officer who shall assess and allow the costs in accordance with this subsection and the tariffs and rules prescribed under clause 44 (d).
(2) Where the amount to which an owner is entitled upon an expropriation or claim for injurious affection is determined by the Tribunal and the amount awarded by the Tribunal is less than 85 per cent of the amount offered by the statutory authority, the Tribunal may make such order, if any, for the payment of costs as it considers appropriate, and may fix the costs in a lump sum or may order that the determination of the amount of such costs be referred to an assessment officer who shall assess and allow the costs in accordance with the order and the tariffs and rules prescribed under clause 44 (d) in like manner to the assessment of costs awarded on a party and party basis. 2017, c. 23, Sched. 5, s. 35.
[79] The parties also refer to r. 141 of the OMB Rules which reads as follows:
- Settlement Offer If an offer to settle is made and it is not dealt with in the Act, the Rules of Civil Procedure apply.
The Amount Offered By the Authority
[80] Shergar submits that the statutory interpretation upon which the Review Board based its determination is unreasonable as a matter of law and, accordingly, that the Board’s determination regarding costs is unreasonable. Shergar says that there can be only one offer for the purposes of s. 32, being the offer required to be made under s. 25 of the Act – in this case the Section 25 Offer. If the Section 25 Offer applies, the amount awarded by the Board exceeded the Section 25 Offer with the result that s. 32(1) of the Act applies to require the City to pay Shergar’s reasonable costs of the expropriation proceeding. Shergar suggests that subsequent offers that qualify under r. 49.10(2) of the Rules of Civil Procedure are relevant solely in the assessment of the reasonableness of a claimant’s costs on an assessment.
[81] This issue also engages a pure matter of law – being the statutory interpretation of ss. 32(1) and 32(2) – specifically, the meaning of the words “the amount offered by the statutory authority”.
[82] On a plain reading of ss. 32(1) and 32(2), “the amount offered by the statutory authority” is arguably susceptible of the two interpretations urged by the parties. However, I think the Rehearing Board’s interpretation of the meaning of these words was reasonable both on a textual approach and on a conceptual approach, and is consistent with the Board’s case law. I will address each in turn.
The Textual Approach
[83] In regard to the textual approach, the starting point is the language of ss. 32(1) and 32(2), which refers in each case to “the amount offered by the statutory authority” rather than “the amount offered by the expropriating authority”. This is a clear indication that these provisions are intended to deal with the costs not only of an expropriation claim under s. 25, a “land taken” claim, but also of a claim for injurious affection under s. 22, a “no land taken” claim.
[84] Given the different treatment of “no land taken” claims in s. 22 and “land taken” claims in s. 25, the omission of any reference in ss. 32(1) and 32(2) to the offer required to be made under s. 25 is significant. Similarly, as the Rehearing Board noted, it is significant that ss. 32(1) and 32(2) do not refer expressly to an offer made under s. 25 notwithstanding that each subsection contains a specific reference to clause 44(d). There is no apparent reason why the legislature would not also have referred to s. 25 if the intention had been to limit “the amount offered by the statutory authority” to the offer required to be made under that provision.
[85] Further, in the case of a “no land taken” claim, there is neither an obligation on the part of the statutory authority to make an offer nor any restriction on the number of offers it may make. Accordingly, in respect of such claims, ss. 32(1) and 32(2) are triggered by the most recent offer, if any, made by the statutory authority. In the absence of any language in ss. 32(1) and 32(2) distinguishing between offers made in respect of “land taken” and “no land taken”, I see no basis for restricting “the amount offered by the statutory authority” in the case of “land taken” cases to the offer required to be made under s. 25.
[86] Similarly, Shergar places great emphasis on the preposition “the” in the phrase “the amount offered by the statutory authority”. However, given the fact that ss. 32(1) and 32(2) also apply to “no land taken” cases for which there is no counterpart to s. 25, I conclude that the word “the” has no special meaning that is relevant for this issue.
Contextual Issues
[87] Shergar argues that permitting a tribunal to have regard to subsequent offers would have two negative consequences. I do not think that either of these submissions is realistic.
[88] First, Shergar says that the Rehearing Board’s interpretation would encourage “low-ball” offers until shortly before trial, thereby frustrating the policy of a fair and expeditious settlement of landowner claims. I do not see how this interpretation would encourage this practice. Shergar ignores the statutory obligation on an expropriating authority in s. 25(a)(i) to serve an offer of an amount in full compensation for a registered owner’s interest and in s. 25(b) to offer the registered owner immediate payment of 100% of the amount of the market value of the land as estimated by the authority. Any demonstrated failure to do so would result in cost consequences to the authority that would compensate the landowner fully for these actions. Moreover, the scenario raised by Shergar contemplates a second offer made on the eve of a hearing that is sufficiently high to trigger the provisions of s. 32(2) and a rejection by the landowner of such a “bonus” offer. Setting aside the issue of whether this is a realistic scenario, which is open to doubt, any abusive negotiating tactics on the part of an expropriating authority would, in any event, also be relevant considerations in addressing any costs award under s. 32(2).
[89] Second, Shergar suggests that the possibility of a second offer on the eve of trial shifts the balance in favour of an expropriating authority or provides it leverage. Shergar was, however, unable to explain to the court how an expropriating authority would obtain leverage by making a second offer. On the other hand, given the formula in s. 32(1), it is clear that an expropriating authority would necessarily have to make a “bonus” offer materially above the market value of the land expected to be determined at trial in order to avoid the adverse cost consequences of s. 32(1). In these circumstances, it would appear that a landowner’s negotiating position is not adversely affected by the possibility of a subsequent offer being made by the expropriating authority.
Applicable Case Law
[90] In my view, the Rehearing Board’s interpretation of ss. 32(1) and 32(2) on this issue is also consistent with the weight of more recent case law of the Board.
[91] Shergar’s position is reflected in the earlier decisions of Jakubowski v. Ontario (Minister of Transportation & Communications) (1973), 6 L.C.R. 29 (“Jakubowski”) and Hewitt v. Ontario (Minister of Transport & Communications) (1985), 33 L.C.R. 194 (“Hewitt”). In Jakubowski at para. 37, the Ontario Land Compensation Board stated the following in respect of a submission of the expropriating authority that a second offer made to the landowner was relevant for a determination of whether costs were to be awarded under the comparable provisions to s. 32(1) and s. 32(2):
As the Board was required under the provisions of s. 33(1) to make an order as therein provided if its award was 85% or more of the amount offered by the statutory authority, it was incumbent that reference be made to the only offer before it for the purpose of making an adjudication under either subsections of s. 33. In the instant case, all the provisions of the Expropriations Act clearly apply to the proceedings before the Board. Section 33 would appear to contemplate only one offer and if that is a proper interpretation of the section then the offer must necessarily be that referred to in s. 25(1) as there is no other section within the Expropriations Act which makes provision for an offer. Accordingly, in the present state of the legislation the Board can be concerned in this case only with the offer made pursuant to s. 25 …
[92] These decisions are not binding on this Court. I also note that Hewitt was a decision of an assessment officer and does not address this issue directly. More significantly, however, the more recent Board case law has not followed Jakubowski.
[93] In Green-Life Proteins Ltd v. Ontario (Ministry of Transport & Communications) (2002), 77 L.C.R. 155 (“Green-Life”) and Whitnall v. Sarnia (City) (1999), 67 L.C.R. 81, the Board addressed the relevance of multiple offers for the purpose of s. 32(2) in the context of claims for injurious affection and awarded costs based on the most recent offer.
[94] The relevance of multiple offers for an expropriation claim was also addressed directly in Bellwood v. Clearview (Town) (1994), 53 L.C.R. 277 (“Bellwood”) in which Member Yao concluded that “remarks in Rotenberg indicate that the purpose of the Act is to encourage settlement of claims”. In Member Yao’s view, this conclusion, together with the reading of the Act in its total context, supported an interpretation that the Board can consider subsequent offers other than s. 25 offers. In short, in Bellwood, the Board concluded that there was no principled basis for distinguishing “land taken” claims from “no land taken” claims for the purposes of a costs award. The statutory purpose of encouraging settlement of claims was present whether the case involved a “land taken” claim or a “no land taken” claim.
[95] Shergar argues that the decisions of the Board and its predecessors in which multiple offers have been considered pertain solely to “no land taken” claims which are to be distinguished from “land taken” claims by virtue of the absence of any requirement for an offer to be made under s. 25. As discussed above, this not entirely the case. In any event, I do not think that the distinction proposed by Shergar is a valid basis for narrowing the interpretation of the words “the amount offered by the statutory authority” to a s. 25 offer for the following reason.
[96] Shergar submits that in the case of a “land taken” case, a statutory authority must compensate a landowner for “permanent interference” with a landowner’s right of ownership which is absent in a “no land taken” case. I do not accept this argument for the reason that, while the nature of the interference may be different, expropriation and injurious affection both involve “permanent interference” with a landowner’s right in the sense of an irreversible impact on those rights. Accordingly, while I accept that there could be a difference in treatment of the costs regime under ss. 32(1) and 32(2) for “no land taken” claims to the extent that an expropriating authority fails to make an offer to a party asserting a claim for injurious affection, I do not think that this evidences a legislative intention to restrict the words “the amount offered by the statutory authority” to an offer made by an expropriating authority under s. 25 of the Act. Moreover, as the case law demonstrates, as a practical matter, there are good reasons why a statutory authority would make at least a nominal offer to an injurious affection claimant in order to trigger the cost provisions of s. 32(2).
The Costs Award Against Shergar
[97] Given the determination above regarding the Rehearing Board’s authority to take into consideration the Rule 49 Offer, it is not disputed that the circumstances fall within s. 32(2) of the Act. Shergar asserts, however, that the Rehearing Board did not have the authority to award costs against it pursuant to this provision.
[98] This submission also raises an issue of statutory interpretation – how broad are the words “such order, if any, for the payment of costs as it considers appropriate”? I see no basis for departing from the plain meaning of these words which gives the Board full discretion in respect of costs, acting reasonably, including the authority to award costs against a claimant.
[99] The purpose of the discretion afforded a tribunal in ss. 32(1) and 32(2) is clearly directed to encouraging an expeditious settlement of claims on an equitable basis. This was made clear by the Court of Appeal as early as 1976 in Rotenberg v. York (Borough) (No.2) (1976), 1976 735 (ON CA), 13 O.R. (2d) 101, 9 L.C.R. 289 (C.A.) (“Rotenberg”). To this end, a tribunal has the ability to address inappropriate delay or other actions by a party in the context of a costs award. This authority has been confirmed since Rotenberg in the cost awards rendered in, among other decisions, Green-Life, Paciorka Leaseholds Ltd. v. Windsor (City), 2008 CarswellOnt 1531, and Willies Car & Van Wash Ltd. v. Simcoe (County), 2016 ONSC 5786, 1 L.C.R. (2d) 271 (Div. Ct.).
[100] Shergar submits that the statutory interpretation of ss. 32(1) and 32(2), and a tribunal’s exercise of its discretion thereunder, should be informed by the statement of the Supreme Court in Dell Holdings at para. 23 that “the Expropriations Act should be read in a broad and purposive manner to comply with the aim of the Act to fully compensate a land owner whose property has been taken.” It suggests that this principle precludes an award against a claimant who is awarded any compensation.
[101] While I agree that the principle of full compensation must inform a tribunal’s decision regarding compensation for the market value of expropriated land, I do not accept that the application of this principle requires that a landowner be compensated for all legal, appraisal, and other costs incurred in asserting a claim under the Act under all circumstances. In particular, I do not accept that the application of the “full compensation” principle excludes consideration of the reasonability of a claimant’s actions in the face of an offer that satisfies the standard of full compensation, as Shergar suggests. Shergar’s position implies that a claimant is entitled to a hearing before a tribunal regardless of how unreasonable the claimant’s position might be. The Rehearing Board reasonably noted that “the Act should not be interpreted so as to permit the funding of unreasonable claims with no costs risk.”
[102] More generally, I also think that the Act can reasonably by interpreted, as the Rehearing Board did, as reflecting a balance between the equally important objectives of full compensation to a claimant and the “just determination of compensation in an expeditious and cost effective manner” with a concomitant encouragement of negotiation to promote early settlement.
[103] To the extent that one of the objectives of s. 32(2) is to encourage fair and expeditious settlements, an interpretation of s. 32(2) which limits a Board to denying costs to, but not awarding costs against, a claimant constrains the Board’s ability to achieve that purpose. Conversely, the authority to award costs against a claimant in the face of an offer well in excess of the market value of the expropriated lands clearly furthers that purpose.
[104] Lastly, as noted above, r. 141 of the OMB Rules provides that the Rules of Civil Procedure apply if an offer to settle is made and it is not dealt with in the Act. However, Shergar suggests that there is conflict between the provisions of s. 32 and the Rules of Civil Procedure and that, pursuant to s. 2(4) of the Act, the provisions of s. 32 should govern to exclude the application of the Rules of Civil Procedure. I do not agree for the following reason.
[105] In the case of an expropriation claim, the existence of an offer made pursuant to the Rules of Civil Procedure does no more than inform a tribunal for the purposes of its exercise of discretion under ss. 32(1) or 32(2), as applicable. Moreover, even if applicable, r. 57.01 and r. 49.10 of the Rules of Civil Procedure are discretionary. They need not be, and should not be, applied formulaically in each case. In particular, to the extent that it could be argued that the provisions of r. 49.10 of the Rules of Civil Procedure govern a particular offer, r. 49.10 preserves a court’s discretion to depart from the application of its terms.
[106] In these circumstances, the Board’s discretionary authority under ss. 32(1) or 32(2) is not constrained or fettered in any manner nor does any conflict arise between the terms of these provisions and Rules of Civil Procedure. Indeed, it appears that the Rehearing Board exercised its discretion in this case. Rule 49.10 would provide that Shergar should receive its partial indemnity costs up to the date of the Rule 49 Offer and the City should receive its partial indemnity costs from that date. The Rehearing Board departed from these provisions in its costs award insofar as it awarded costs on the scale contemplated by s. 32(2) of the Act.
Conclusion Regarding the Costs Award
[107] Based on the foregoing, I conclude that the costs award in the Rehearing Decision is reasonable.
Conclusion
[108] Based on the foregoing, Shergar’s appeal is denied in its entirety.
Costs
[109] The parties have agreed that costs in the amount of $50,000 on an all-inclusive basis will be payable to the successful party. Accordingly, costs in this amount are payable by Shergar to the City forthwith.
Wilton-Siegel J.
I agree _______________________________
Swinton J.
I agree _______________________________
Sheard J.
Date:
CITATION: Shergar Development Inc. v. City of Windsor, 2019 ONSC 2623
DIVISIONAL COURT FILE NO.: 071/18
DATE: 20190429
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Wilton-Siegel and Sheard JJ.
BETWEEN:
SHERGAR DEVELOPMENT INC.
Appellant
– and –
THE CITY OF WINDSOR
Respondent
REASONS FOR JUDGMENT
Wilton-Siegel J.
Released: April 29, 2019