Stephen F. Waqué

The appellant appealed an Ontario Municipal Board decision regarding interest and costs awarded following the expropriation of its lands by the respondent City.

The Board had calculated statutory interest based on the appellant's net interest in the lands after deducting an outstanding mortgage, and awarded costs against the appellant from the date of a Rule 49 settlement offer that exceeded the final compensation award.

The Divisional Court found the Board's interpretation of the Expropriations Act regarding both the interest calculation and the costs award to be reasonable, dismissing the appeal.

Following a motion concerning vesting of lands and alleged contempt of a prior order in estate litigation, the court addressed the issue of costs.

The moving party had been substantially successful in obtaining the primary relief sought, though the contempt finding was not granted.

The court considered the discretionary principles under s.131 of the Courts of Justice Act and the factors in Rule 57.01 of the Rules of Civil Procedure, as well as the effect of a prior offer to settle under Rule 49.

Although the moving party sought higher costs based on substantial indemnity following its offer to settle, the court found some merit in the responding party’s position and noted the matter primarily served to bring closure to a long-standing dispute.

Costs were therefore fixed in a reduced amount.

The estate trustee during litigation brought a motion seeking a vesting order to implement transfers of land and easements required by a prior settlement order, and also sought a contempt finding against the respondent for failing to provide instructions necessary to complete registration.

The dispute concerned the location of a pedestrian right-of-way to the waterfront that the respondent argued was impractical due to steep terrain.

The court held that the respondent had entered into the settlement with knowledge of the terrain and had failed for several years to bring any motion to vary or clarify the order.

While the vesting order should be granted to implement the nearly six-year-old order, the court was not satisfied that the respondent had deliberately disobeyed a clear and unequivocal order.

Accordingly, contempt was not established beyond a reasonable doubt.

The parties brought competing applications seeking the court’s direction regarding the interpretation of provisions in a commercial lease governing the determination of fair market land value for rent recalculation.

The lease required each party to appoint an appraiser and, if the resulting valuations differed by more than ten percent, for the two appraisers to jointly select a third appraiser.

After conflicting valuations triggered the third-appraiser mechanism, the tenant proposed altering the process to appoint a legally trained decision-maker who was not a licensed appraiser.

The court held that the lease clearly required the appointment of a qualified appraiser experienced in valuing commercial property in Toronto and that the proposed alternative would improperly amend the agreement without the landlord’s consent.

The court therefore directed that the previously identified qualified appraiser be appointed to proceed with the appraisal process.

The appellant sought costs as the successful party on appeal, while the respondents sought costs relying on s. 32(1) of the Expropriations Act.

The Court of Appeal held that s. 32(1) applies to the Ontario Municipal Board, not the court, and is triggered only when the Board has made an order awarding at least 85% of the offered amount.

Since the Board's order was set aside, s. 32(1) did not apply at this stage.

The appellant was awarded partial indemnity costs of $108,000 for the Divisional Court appeal and $45,000 for the Court of Appeal proceedings.

However, the court directed that the costs are not payable until the matter is finally resolved by the Board.

The City of Windsor appealed a Divisional Court decision upholding an Ontario Municipal Board (OMB) award for the expropriation of the respondents' lands.

The OMB had determined the market value of the expropriated lands and awarded injurious affection damages for the remaining lands based on an expropriation scheme dating back to 1983.

The Court of Appeal allowed the appeal, finding that the OMB unreasonably failed to consider the negative impact of the 1996 Provincial Policy Statement (PPS) on the lands' market value, as the PPS was not part of the expropriation scheme.

Furthermore, the OMB erred in law by assessing injurious affection damages based on the entire expropriation scheme rather than limiting them to the diminution in value caused specifically by the City's acquisition of the lands.

A new hearing was ordered.

The applicant sought judicial review for a declaration that the Ministry of Transportation unreasonably withheld a clearance letter for a subdivision development.

The Divisional Court dismissed the application as premature, noting that the Ministry was still actively reviewing the engineering drawings.

The Court further held that the appropriate forum to address difficulties in implementing draft plan approval conditions is the Ontario Municipal Board, which retained jurisdiction over the matter.

The Toronto and Region Conservation Authority and the City of Toronto appealed an Ontario Municipal Board decision awarding the respondents $1,859,999 for injurious affection to their remaining lands following an expropriation.

The appellants argued that a previously granted parkland dedication credit settled the claim, should be set off against the damages, or that the Board erred in calculating the lost development units.

The Divisional Court dismissed the appeal, finding the Board's decision reasonable.

The court held that the parkland credit related to the expropriated land, while the injurious affection claim related to the loss of opportunity to build townhouses on the remaining land, meaning there was no double recovery.

The appellants appealed a trial judgment awarding damages to the City of Windsor for the cost of restoring municipal roads to grade after Canadian Pacific Railway abandoned a railway line.

The Court of Appeal dismissed the appeal, finding it was open to the trial judge to conclude that the railway's obligation to maintain the bridges continued after abandonment, and that the damages awarded represented the least cost to restore the roads to grade.

The appellant appealed a trial judgment regarding the ownership of lands under the Riverside Drive bridge and allegations of bad faith.

The Court of Appeal upheld the trial judge's findings that the road was a busy public road in the 1880s, the railway never intended to acquire the land under the bridge, and the road was a municipal street owned by the City.

The appellant's argument that the federal Crown owned the land was rejected, as the road was not an unopened road allowance laid out by a Crown surveyor.

The appeal was dismissed with costs.

The respondent was successful on an appeal and sought costs on a partial indemnity basis in the amount of $70,987 plus disbursements and taxes.

The appellants argued the claimed rates and hours were excessive, particularly the attendance of two counsel and the time spent reviewing transcripts.

The court agreed that the hours claimed were excessive, the attendance of two counsel was unnecessary, and certain disbursements were not compensable.

Costs were fixed at $55,000 inclusive of disbursements and GST.

The appellant school board expropriated a portion of the respondents' land for a school site.

The respondents sought compensation for the market value of the land and for lost developer's profit as disturbance damages.

The Ontario Municipal Board awarded market value but denied the claim for lost developer's profit.

The Divisional Court reversed, awarding the lost profit as disturbance damages.

The Court of Appeal allowed the school board's appeal, holding that lost prospective developer's profit is not compensable as disturbance damages under the Expropriations Act, and restored the OMB's award.