CITATION: DiBattista Developments v. City of Brampton, 2017 ONSC 6178

COURT FILE NO.: CV-17-12-00

DATE: 2017 10 17

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DIBATTISTA GAMBIN DEVELOPMENTS LIMITED

Robert Malen, for the Applicant

Applicant

• and -

THE CORPORATION OF THE CITY OF BRAMPTON

Signe Leisk and Melissa Winch, for the Respondent

Respondent

HEARD: September 18, 2017

REASONS FOR JUDGMENT

Justice Thomas A. Bielby

INTRODUCTION

[1] The Applicant seeks the following relief:

(a) (i) That upon payment to the Applicant by the benefitting party (as hereinafter defined) of the fair market value of Block 203 (on registered Plan 43M-1276 in the City of Brampton, Regional Municipality of Peel), and

(ii) upon written direction by the Applicant to the Respondent that the Applicant has been thereby compensated, that

(iii) an order be made that the Respondent transfer ownership of Block 203 to the said benefiting party; and

(b) an order that the Respondent compensate the Applicant for the fair market value of Block 203.

[2] The Applicant was the developer of a residential subdivision in the City of Brampton known as West Mayfield Development (Mayfield), being Registered Plan 43M-1276.

[3] The subdivision agreement between the two parties required the Applicant to convey Block 203 to the Respondent for, “future road purposes”. Block 203 was conveyed to the Respondent on February 26, 1998.

[4] Currently Block 203 abuts a municipal park and is currently used for park purposes.

[5] It is the position of the Applicant that the future road was intended to facilitate the future development of abutting lands, described as PIN #14235-0017 (Lot 17) and PIN #14235-0018 (Lot 18) which lots are currently owned by a third party operating under the name of Mayfield Holdings (Holdings) and which now proposes the construction of townhomes on the lots.

[6] The Applicant submits that the proposal does not contemplate the construction of a road on Block 203 but does include the Block as part of the lands needed for the development. If this is true, Block 203 would have to be conveyed by the Respondent to Holdings.

[7] The Applicant further alleges that if Block 203 had been required for road purposes, it would have been compensated through a process known as “cost sharing” which would require the benefiting party, in this case Holding, to contribute a proportionate share of the servicing costs incurred by the Applicant. As a road Block 203 would remain the property of the Respondent.

[8] The Applicant submits that the Respondent now intends to convey Block 203 to Holding and that accordingly it ought to be compensated for the value of the Block.

[9] The Respondent submits that there has been no decision in regards to the use or disposal of Block 203. It is further submitted that the Block was conveyed to the Respondent absolutely, without condition, and as a result, regardless of how the Respondent utilizes the Block, the Applicant has no interest therein and is not entitled to any compensation.

FACTS

[10] The plan of subdivision and the subdivision agreement, executed by both the Applicant and the Respondent, were registered on title on January 30, 1998, and can be found at Exhibits B and C to the affidavit of Ray DiBattista, sworn January 2, 2017. Block 203 is shown as a strip of land running from Summer Valley Drive and abutting Lots 17 and 18. Certainly Block 203, if opened as a road, would provide access from Summer Valley Drive to Lots 17 and 18.

[11] The relevant paragraphs of the subdivision agreement are as follows.

[12] Paragraph 18.1 in part, states,

“At no cost to the City or the Region, the Owner shall grant to the City and the Region, free of encumbrances, the Lands and easements described in Schedule F to this agreement for municipal purposes.”

[13] Paragraph 1.4 of Schedule F, under the title, “Lands to be Conveyed to the City” states,

“Future Roads Blocks 203 to 209, inclusive. * See Note 4”.

[14] Note 4 states,

“See also Schedule G – 3, paragraph 7, regarding the reconveyance of these Blocks.”

[15] Paragraph 7 of Schedule G – 3 is entitled, “Future Roads (Blocks 204 – 209 inclusive)” and states,

“Blocks 204 to 209, inclusive, which are required to be conveyed to the City for future roads, shall be reconveyed to the Owner at no cost should the City decide that they are no longer required for a future road. This right of reconveyance shall terminate fifteen (15) years from the date of the registration of the plan.”

[16] In relation to cost sharing, paragraph 8 of Schedule G – 3 is entitled, “Reasonable Efforts Clause”. Therein the City acknowledges that the Owner provided some works described in Schedule G – 4 to the agreement and which are referenced as “The Benefiting Works”. Such works provided a benefit to the lands also described in Schedule G – 4, which are called the “Benefiting Lands”.

[17] Paragraph 8.2 states,

“The City, so far as it is legally