Di Blasi v. York (Regional Municipality), 2022 ONSC 7104
CITATION: Di Blasi v. York (Regional Municipality), 2022 ONSC 7104
FILE NO.: 1157/19
(Oshawa)
DATE: 20221219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Perell and McCarthy JJ
BETWEEN:
GAETANO DI BLASI
Raymond Boggs, for the Appellant
Appellant
– and –
THE REGIONAL MUNICIPALITY OF YORK
Frank J. Sperduti, Piper Morley and Julie LeSage for the Respondent
Respondent
HEARD at Toronto by videoconference:
January 31, 2022
AMENDED reasons for decision[^1]
D.L. Corbett J.
[1] This is an appeal from a decision of the Land Planning Appeal Tribunal (“LPAT”) fixing the amount of compensation due to the appellant for land expropriated by the respondent (Di Blasi v. York (Regional Municipality), 2019 18919 (ON LPAT) [the “Decision”]). The appellant purports to raise twelve issues on appeal, which the respondent has distilled to “only” nine issues.
[2] This is a fact-driven case. Appellate review in this court is deferential on questions of fact, and, on a careful review of the decision and record below, there is no basis on which this court should interfere. Therefore, for the reasons that follow, the appeal is dismissed.
Jurisdiction and Standard of Review
[3] The decision below was made under the Expropriations Act, which provides a right of appeal to this court “on a question of law or fact or both” (Expropriations Act, RSO 1990, c. E.26, s.31(1)). The standard of review is the “appellate standard” (Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65). As stated in Vavilov, at para. 37:
Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] SCR 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for mixed questions of fact and law where the legal principle is not readily extricable)….
[4] In the Notice of Appeal and in the appellant’s factum, many grounds of appeal are raised that are prefaced by a statement that the LPAT “erred in law by” the manner in which it weighed the evidence and came to its findings of fact. However, an alleged error of fact is not transformed into an error of law by the manner in which it is phrased in the Notice of Appeal. As I explain below, the LPAT did not accept the appellant’s arguments that the highest and best available use of the expropriated land was commercial / light industrial. No genuine error of law has been identified in respect to the legal test applied or in respect of the scheme of the legislation involved in determining lawful uses of the land. The decision below turned on the LPAT’s factual findings, and those findings are reviewable in this court on a standard of palpable and overriding error.
[5] The appellant has also raised issues respecting evidentiary rulings made by the LPAT and an allegation of bias. As I explain below, I see no merit in these allegations. The appellant misbehaved during the Tribunal hearing, and it is evident that the Tribunal found it challenging to maintain order and still proceed with the hearing. The appellant has no one to blame but himself for the rulings and directions made by the Tribunal to address his difficult conduct at the hearing. Where a litigant is rude and obstructive during a hearing, he or she can expect to be treated abruptly and to be subject to directions designed to maintain order and keep the hearing moving forward.
Factual Background
[6] The appellant owns[^2] land located at the corner of Bloomington Road and Leslie Street in Aurora, Ontario. Prior to the expropriation, it comprised 48.11 acres. The respondent exercised its power of expropriation twice in respect to portions of the appellant’s land abutting the roads for the purposes of street widening and drainage. The two Valuation Dates are August 26, 2008 (for the first expropriation of 2.309 acres) and June 3, 2010 (for the second expropriation of 0.6 acres).
[7] The two issues before the LPAT were: (i) what was the highest and best use of the expropriated land on the Valuation Dates? and (ii) on the basis of the highest and best use of the land, what was the market value of the land on the Valuation Dates?
[8] The Tribunal found that the highest and best use of the land, as of the two Valuation Dates, was “a continuation of its residential and environmental lands holding use for the foreseeable future with no material opportunity for land severance.” The Tribunal found that the market value on the first Valuation Date was $40,000 per acre (for a total value of $92,360) and that the market value of the second Valuation Date was $50,000 per acre (for a total value of $30,000). The Tribunal also awarded damages for injurious affection under three headings in an aggregate amount of $6,117.50.[^3] In addressing these two questions – highest and best uses and valuation, the board followed established legal authority on the proper analysis in a case such as this one.[^4]
Basis of the Tribunal’s Findings
[9] The Tribunal’s finding on the first issue – the highest and best use of the land – was based primarily on the expert planning evidence of the respondent’s expert witness, Ms Dale-Harris. The appellant adduced no admissible expert planning evidence.
[10] The Tribunal’s finding on the second issue – market value – was based on the evidence of the respondent’s two expert witnesses, Messrs Bender and Weir, whose evidence the Tribunal preferred to the evidence of the appellant’s expert witness, Mr Schaufler, because the appellant’s expert based his opinion on flawed assumptions about the highest and best uses to which the land could be put.
Arguments on Appeal
(a) LPAT’s Refusal of the Appellant’s Adjournment Request
[11] The appellant argues that the LPAT erred in refusing an adjournment pending decision in proceedings brought by the appellant in the Superior Court of Justice seeking a declaration of existing non-conforming uses for the land. In the written argument in this court, the appellant argues that “the determination by the Superior Court would have been determinative of the central issue in the case, namely whether or not the now Appellant held Existing Non-Conforming Use status which would have increased the value of the property.” (Factum, para. 83) The balance of the appellant’s written argument on this point concerns the merits of his argument respecting non-conforming use, and not the merits of the adjournment decision.
[12] There are three reasons to reject this ground of appeal.
a. First, the decision to grant or refuse an adjournment request is in the discretion of the Tribunal. The Tribunal gave cogent reasons for refusing the request (Decision, para. 11); there is no basis for this court to interfere with the Tribunal’s exercise of discretion.
b. Second, the Tribunal has the jurisdiction to decide all questions necessary to decide issues before it under the Expropriations Act. The appellant cannot oust the Tribunal’s jurisdiction by bringing collateral proceedings before the Superior Court of Justice.
c. Third, I note that the appellant did not obtain a decision or take steps to move forward with his application in the Superior Court of Justice in the nearly three years between the LPAT hearing and argument of the appeal in this court. No record was before us as to why the SCJ proceedings had not been pursued or concluded. In oral argument, appellant’s counsel attributed the continuing delay to COVID-19, but he acknowledged that no steps had been attempted by the appellant to move the SCJ that matter forward for the three years between the LPAT hearing and this appeal. This context does nothing to undermine the reasonableness of the LPAT’s exercise of discretion to refuse the adjournment: the expropriations took place in 2008 and 2010. The compensation issue was long outstanding. The hearing date before the Tribunal was set on consent, and the appellant’s last-minute resort to collateral proceedings in the Superior Court of justice would have led to further years of delay. Both sides are entitled to a timely adjudication of these issues, and the Tribunal’s refusal of the adjournment request was reasonable in the circumstances.
(b) Highest and Best Use of the Property
The Tribunal’s Factual Findings
[13] The Tribunal found as follows:
(i) the property is located within the Oak Ridges Moraine Conservation Plan (“ORMCP”).
(ii) most of the property is designated “Natural Linkage” under the ORMCP. A small portion of the property is designated “Countryside” under the ORMCP.
(iii) the property contains a “Provincially Significant Wetland” (a “PSW”) and has additional designations under the ORMCP for high aquifer vulnerability and “landform conservation category II”.
(iv) it is very unlikely the property could be removed from the ORMCP.
(v) the property cannot be severed into multiple lots under the terms of the ORMCP.
(vi) uses of the property alleged by the appellant were not legal non-conforming uses as of the Valuation Dates.
[14] The Tribunal found, based on these facts and the uncontradicted expert planning opinion of Ms. Dale-Harris, that the highest and best use of the property on the Valuation Dates was “a continuation of its residential and environmental lands holding use for the foreseeable future with no material opportunity for land severance.” (Decision, para. 275)
[15] The appellant’s case is focused on the issue of non-conforming uses. He presented no evidence inconsistent with the respondent’s evidence respecting points (i) to (v), above. The Tribunal accepted the respondent’s evidence respecting points (i) to (v), and there being no evidence to the contrary before the Tribunal, the Tribunal’s conclusions respecting these points is reasonable. Thus, the issue of non-conforming uses turns on point (vi).
Were there Legal Non-conforming Uses of the Property as of the Valuation Date?
[16] Where a By-Law prohibits a use on a property, the burden to show a legal non-conforming use lies on the claimant, in this instance, the appellant. To establish a legal non-conforming use, the appellant must establish that:
(a) the claimed use was established and lawful on the day of passing of a bylaw which prohibits the use; and
(b) the use has been continuous since the day the interfering bylaw was passed.[^5]
[17] The applicable By-Law, in this case, is the ORMCP.[^6] It came into effect on November 15, 2001. Therefore, the onus was on the appellant to establish a legal non-conforming use of the property as of November 15, 2001, that was still continuing on the applicable Valuation Date.
[18] Commercial/light industrial uses have not been permitted on the property since enactment of By-Law No. 2083 of the Town of Whitchurch in 1970.[^7] These restrictions were continued in the Region’s 1974 Official Plan and continued up to enactment of the ORMCP.
[19] The appellant purchased the property in 1982.[^8] He gave evidence that during his ownership of the property, he used it for a gravel pit, for storing construction vehicles, and as office premises for his construction business. These activities were undertaken in connection with construction projects in which he was involved on nearby properties under development.
[20] The appellant called no expert planning evidence to establish that these uses were ever legal. On the basis of the expert evidence that was before the Tribunal, these uses were not legal at the time the appellant purchased the property and continued to be illegal to and including the Valuation Date.
[21] The appellant testified that, prior to his purchase of the property, it had been used for storage of construction vehicles by Gary Babcock, who rented the property from a prior owner.[^9] The appellant testified that this “use” if the property began “in the 1970’s”. The appellant called no expert planning evidence to establish that these uses were ever legal. On the basis of the expert evidence before the Tribunal, these uses were not legal and there was no evidence before the Tribunal that these uses were taking place prior to enactment of the Whitchurch By-Law in 1970. Further, this aspect of the appellant’s argument would only encompass storage of construction vehicles on the property, and not the operation of the gravel pit.
[22] The appellant’s primary claim concerned the gravel pit operation. It is uncontested that it did take place, whether the use was legal or not. The Tribunal found that this use ceased as of 2005. This finding was available to the Tribunal on the evidence before it. Thus, on the facts as found by the Tribunal, gravel pit activities were not continuing uses as of the Valuation Dates.
[23] The appellant’s truck and trailer storage activities on the property were documented (he had a few vehicles on the site). There was no evidence that this was ever a legal use of the property, but in any event, as found by the Board, such a use would not increase the value of the lands as of the Valuation Dates: a comparable property with this use was valued at about $35,000 per acre, less than the values found by the Tribunal.
[24] The appellant’s expert valuation witness, Mr Schauffler, relied on an expert planning report obtained by the appellant in opining on value assuming the property could be used for light industrial uses. This report, apparently from Ages Consultant Ltd., was not supported by evidence from the planner. The Tribunal refused to admit the planning report into evidence for the truth of its contents without an expert witness to testify to the facts, opinions and conclusions set out in the report. This was a reasonable evidentiary ruling. The report disagreed with the expert evidence tendered by the respondent. The respondent’s expert witness testified and was subject to cross examination. The Board reasonably concluded that the appellant could not respond to the respondent’s planning evidence by tendering an unsupported hearsay expert opinion that would not be tested by cross examination.
[25] On the record, the Tribunal found, as a fact, that the appellant had not established a legal non-conforming use of the property. The Tribunal made no palpable and overriding error of fact in so finding.
Other Arguments on Appeal
(i) Expropriations Act, s.14(3)
[26] The appellant argued that he has the benefit of s.14(3) of the Expropriation Act, and that the expert evidence and consequent findings of the Board ignored this principle. This argument is misconceived.
[27] The Board quoted s. 14(3) in the Decision.[^10] It provides:
(3) Where only part of the land of an owner is taken and such part is of a size, shape or nature for which there is no general demand or market, the market value and the injurious affection caused by the taking may be determined by determining the market value of the whole of the owner’s land and deducting therefrom the market value of the owner’s land after the taking.
[28] The respondent’s expert evidence and the Tribunal’s decision correctly applied this provision. The Tribunal determined the highest and best uses of the entire property, not just the expropriated portions, and determined the value, per acre, of the entire property. It then applied that valuation to the expropriated property.
[29] I see no error of law in the Tribunal’s approach to calculating the value of the expropriated lands.
(ii) Board Permitting Cross Examination of the Appellant Attacking His Credibility
[30] The appellant argued that the Tribunal erred by permitting the respondent to cross-examine the appellant on prior adverse credibility findings in previous unrelated proceedings. The appellant framed his argument on this point in multiple ways, including: (a) unfairly or erroneously permitting cross examination in respect to “bad character” or “propensity” evidence, (b) using “previously undisclosed documents” for the purpose of this cross examination, (c) placing weight or undue weight on these points, and (d) displaying a reasonable apprehension of bias towards the appellant in light of these matters and other matters described below.
[31] The respondent did attack the appellant’s credibility during the hearing below. There was a basis for this attack, rooted in photographs of current uses of the property that were inconsistent with the appellant’s oral testimony, unsuccessful efforts taken by the appellant to establish his claimed uses of the property or to obtain changed zoning for his property that reflected his understanding that his position at the hearing on legal non-conforming uses lacked merit, and the appellant’s failure to adduce expert planning evidence on the central issue in the case.
[32] The respondent was entitled to test the appellant’s credibility and, given the foundation that was established before the Tribunal, it was entitled to put prior adverse findings of credibility to the appellant. The line between material documents for which prior production is required, and documents in a “barrister’s brief” that may not be material unless a witness testifies, is not a fixed one, and it is a matter of discretion for the Tribunal. It was within the Tribunal’s discretion to permit the impugned line of cross examination, though it also would have been open to the Tribunal to refuse to permit it because of the failure to disclose the documents prior to the hearing.
[33] In any event, the Tribunal did not base its decision on an adverse finding of credibility. Its core finding is that the appellant did not establish that: (i) his claimed uses of the property were ever legal; or (ii) that the gravel pit/land fill uses were continuing uses of the property as of the Valuation Dates.
[34] The appellant points to the Tribunal’s review of evidence concerning the appellant’s credibility to support his argument that the case turned on an adverse finding of credibility (Decision, paras. 82-100). That is not a fair characterization of the Tribunal’s decision. The Tribunal summarized the evidence and arguments before it in narrative form before embarking on its analysis (paras. 75-239). While many courts and tribunals have moved to a “point-first” approaching to decision-writing, the approach adopted by the Tribunal is still acceptable so long as – after the comprehensive view of the evidence – the decision-maker does not lapse into conclusory reasoning based on the totality of the evidence it has just summarized. This Tribunal did provide an analysis – at paras. 240-300 – and that analysis explains the basis of the Tribunal’s decision. The Tribunal did prefer the evidence of the respondent’s witnesses, but its reasoning for this finding was not based on prior findings that the appellant is an unreliable witness. Rather, the credibility finding was based on the evidence adduced respecting these lands in this proceeding.
[35] I conclude that the Tribunal did not err or conduct the hearing in a procedurally unfair manner in respect to these issues, and, in any event, the appellant’s cross examination about past findings of unreliability was not, a material factor in the Tribunal’s decision.
(iii) Allegation of Reasonable Apprehension of Bias
[36] This was a difficult hearing. From time to time, the appellant acted badly and disrespectfully towards the Tribunal. I appreciate that the appellant feels strongly about these issues and is sincere in his belief that his property was worth more than the respondent believes it was worth. But that is not a justification for being rude and disruptive during the hearing.
[37] The appellant argues that the Tribunal’s treatment of him during – including: excluding him from a portion of the hearing, giving him peremptory directions, cutting him off when he was speaking, and permitting the allegedly unfair cross examination on his character and truthfulness, created an air of oppression giving rise to a reasonable apprehension of bias.[^11]
[38] I do not accept this argument. The Tribunal is entitled to control its own process, and when a litigant before it behaves badly, it is entitled to take steps – including stern steps – to require the litigant to behave in a civil manner, respectful of the Tribunal’s control over its own process. The appellant was treated quickly by the Tribunal in response to his own rudeness and unruliness. The Tribunal’s response was measured and reasonable and enabled the hearing to continue on a reasonable schedule to its conclusion.
[39] In this context, the Tribunal’s impugned rulings about attacks on the appellant’s credibility do not add to an “air of oppression” contributing to a reasonable apprehension of bias.
[40] I understand that the appellant did not like being told what to do by the Tribunal and did not like counsel for the respondent suggesting to him that he was being untruthful. However, there was no conduct that could be considered outside the boundaries of what is an adversarial system and the appellants’ indignation is not a basis for finding a reasonable apprehension of bias.
[41] There is a strong presumption of impartiality and the circumstances of this case do not come close to justifying an allegation of bias. The attacks on the integrity of the Tribunal were unwarranted and insubstantial.
Disposition and Costs
[42] The appeal is dismissed, with costs payable by the appellant to the respondent fixed in the agreed amount of $25,000, inclusive, payable within thirty days.
D.L. Corbett J.
I agree _______________________________
Perell J.
I agree _______________________________
McCarthy J.
Released: December 19, 2022
CITATION: Di Blasi v. York (Regional Municipality), 2022 ONSC 7104
FILE NO.: 1157/19
(Oshawa)
DATE: 20221219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Perrell and McCarthy JJ.
BETWEEN:
Gaetano Di Blasi
Appellant
– and –
The Regional Municipality of York
Respondent
REASONS FOR DECISION
D.L. Corbett J.
Released: December 19, 2022
[^1]: The decision was amended December 22, 2022 to correct an error respecting the costs agreed by the parties.
[^2]: Some issue was made by the respondent as to whether the proper appellant is the appellant or his son. Nothing turns on this issue in respect to this appeal decision. The appellant was the claimant before the Tribunal: See Decision, para. 2.
[^3]: Decision, para. 21.
[^4]: Decision, para. 28, following re Farlinger Developments Inc. v. East York (Borough) (1976), 1975 587 (ON CA), 9 OR 553 (CA).
[^5]: Planning Act, RSO 1990, C. P.13, s.34(9); Rotstein v. Oro-Medonte Township, 2002 25100, paras. 32-35 (Ont. SCJ).
[^6]: The applicable planning laws are set out in full detail in the Decision, paras. 33-74.
[^7]: Testimony of Ms Dale-Harris, Transcript, pp 144-165; CaseLines B218 et seq., and B253.
[^8]: At some point the appellant transferred title to the property to his son, Vito Di Blasi. The appellant claims that his son holds title to the property as a bare trustee for him. The respondent challenged that assertion and the appellant’s standing to bring this appeal. I would not enter into this issue since it is not necessary to decide the appeal: assuming without finding that the appellant is the beneficial owner of the property, and that this is sufficient to give him standing to bring this appeal, and assuming that the transfer of legal title did not affect any claim of legal non-confirming use, the appeal must still be dismissed.
[^9]: This hearsay evidence was admitted by the Tribunal and was corroborated to some extent by a photograph provided to the Board apparently showing a business sign for Mr Babcock’s business as a handyman who provided some construction services: Decision, para. 80.
[^10]: Decision, para. 25.
[^11]: The appellant was represented by counsel before the Tribunal, and the appellant’s counsel was not excluded from the hearing.