Stephen Waqué

The Tribunal held a Case Management Conference to obtain a status update on a land compensation appeal under the Expropriations Act.

The Tribunal set a 5-day video hearing and directed the parties to submit a revised draft Procedural Order, which was subsequently approved and appended to the decision.

The City of Windsor appealed a Local Planning Appeal Tribunal (LPAT) decision awarding the respondents approximately $2.8 million in compensation for expropriated lands and injurious affection.

The City argued the LPAT breached natural justice by copying the respondents' submissions and erred in its treatment of Provincial Policy Statements (PPS) regarding environmentally sensitive lands.

The Divisional Court dismissed the appeal, finding that the extent of copying did not rebut the presumption of independent decision-making.

The Court also found no palpable and overriding errors in the LPAT's factual findings regarding the impact of the PPS on the lands' development potential, the valuation of the properties, or the award of interest.

The appellant's land was expropriated by the respondent municipality.

After years of delay and litigation, the appellant rejected a settlement offer of $1.2 million.

The Ontario Municipal Board ultimately awarded compensation of $710,000 and ordered costs against the appellant from the date of the settlement offer.

The appellant appealed, arguing that 'amount offered' under s. 32 of the Expropriations Act refers only to the initial statutory offer under s. 25, and that costs cannot be awarded against an expropriated party.

The Court of Appeal dismissed the appeal, holding that s. 32 encompasses subsequent offers and that the Board retains discretion to award costs against a claimant to encourage settlement and sanction unreasonable conduct.

The appellants appealed a decision of the Local Planning Appeal Tribunal regarding compensation for properties expropriated by the City of Toronto.

The appellants challenged the Tribunal's valuation of the properties, the start and end dates for interest, and the denial of disturbance damages for lost business opportunities and replacement property costs.

The City cross-appealed the award of 12% interest for delay and disturbance damages for lost commissions.

The Divisional Court dismissed both the appeal and cross-appeal, finding no palpable and overriding errors in the Tribunal's factual findings or legal interpretations, except for a minor variation to the calculation of loan costs agreed upon by the parties.

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.

Piller Investments Limited appealed a partial arbitral award concerning a commercial lease and an option to purchase.

The arbitral panel had granted partial summary judgment on some issues and deferred others to a full hearing.

The Superior Court of Justice dismissed the appeal, finding the arbitral panel's substantive legal decisions were reasonable and free from errors of law.

The court also held that the panel's decision to defer certain issues was a procedural determination on which there is no right of appeal, and even if appealable, was consistent with summary judgment principles.

The plaintiff sued the defendant appraisers for professional negligence after an arbitrator rejected their real estate appraisal, resulting in the plaintiff receiving a lower buyout price for its property interest.

The defendants brought a third party claim against the plaintiff's former lawyers, alleging the lawyers negligently represented the plaintiff during the arbitration and caused the losses.

The lawyers moved to strike the third party claim, arguing it merely alleged a failure to mitigate and was barred by issue estoppel.

The defendants cross-moved to amend the claim and add another law firm as a third party.

The court struck the portions of the third party claim that amounted to a failure to mitigate the initial loss caused by the appraisal.

However, the court allowed the broader claims regarding the lawyers' negligent representation at the arbitration to proceed, finding they disclosed a tenable cause of action.

The court also granted the defendants leave to add the proposed third parties.

The parties disputed the interpretation of a rent-reset clause in two 100-year ground leases.

The landlord appealed a Superior Court decision that set aside an arbitral award valuing the lands based on a hypothetical freehold condominium development.

The tenants cross-appealed, arguing the leasehold interest should be valued and seeking a new arbitral panel.

The Court of Appeal dismissed the appeal and cross-appeals, holding that issue estoppel applied from a 1993 decision between the parties, meaning the lands must be valued as a freehold interest but excluding the potential for freehold condominium development because the lands are subject to a lease.

The court also affirmed remitting the matter to the original arbitral panel.

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 applicant sought leave to appeal an Ontario Municipal Board (OMB) decision dismissing her appeal of a municipal by-law regarding proposed hospital lands.

The OMB found she lacked standing because she did not make oral or written submissions to City Council when the by-law was considered, as required by s. 34(19) 2 of the Planning Act.

The Divisional Court held that the OMB's interpretation of the standing requirement was reasonable and dismissed the motion for leave to appeal.

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 applicant sought judicial review of an Ontario Municipal Board decision that dismissed parts of her appeal regarding a municipal Official Plan.

The Divisional Court dismissed the application on the basis that the applicant had an adequate alternative remedy.

Specifically, the applicant failed to request a review or rehearing under section 43 of the Ontario Municipal Board Act, which provides a statutory mechanism to address her claims of procedural unfairness.

The court noted that allowing the judicial review would undermine the legislative scheme, which requires leave to appeal Board decisions.

The tenants under two long-term ground leases appealed a majority arbitration award determining the fair market value of the lands for rent re-set purposes.

The court upheld the arbitrators' finding that the freehold interest, not the leasehold interest, was to be valued.

However, the court found the arbitrators erred in law by including the potential value of a freehold residential condominium project in the valuation, as a prior Divisional Court decision between the parties established that development potential unavailable to the tenants due to legal restrictions must be excluded.

Finding that issue estoppel applied to this prior determination, the court set aside the arbitration award and ordered a new hearing.

The City of Toronto sought leave to appeal a decision of the Ontario Municipal Board (OMB) which found it had jurisdiction to determine whether site plan control applied to a proposed change of use for the respondent's property.

The Chief Building Official had refused a building permit on the basis that site plan control applied.

The Divisional Court granted leave to appeal, finding reason to doubt the correctness of the OMB's decision on a true question of jurisdiction, and noting the issue was of sufficient general importance.

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 City of Windsor appealed an Ontario Municipal Board decision awarding compensation to landowners for expropriated property.

The City argued the Board erred by ignoring the land's natural features and provincial policy statements when determining market value, and by improperly assessing injurious affection and interest.

The Divisional Court dismissed the appeal, finding the Board's conclusions on the scope of the expropriation scheme, the highest and best use of the land, and the appropriate comparators were reasonable and supported by the evidence.

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.