1739061 Ontario Inc. v. Hamilton-Wentworth District School Board, 2016 ONCA 210

• Judge: Feldman, Lauwers and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 30, 2015
• Jurisdiction: Ontario
• Citations: 2016 ONCA 210;(2016), 348 O.A.C. 154 (CA)

1739061 Ont. v. Hamilton-Wentworth Sch. (2016), 348 O.A.C. 154 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. MR.023

1739061 Ontario Inc. (applicant/appellant) v. Hamilton-Wentworth District School Board (respondent/respondent)

(C60267; 2016 ONCA 210)

Indexed As: 1739061 Ontario Inc. v. Hamilton-Wentworth District School Board

Ontario Court of Appeal

Feldman, Lauwers and Benotto, JJ.A.

March 15, 2016.

Summary:

In 2013, the respondent School Board expropriated a parcel of land located in the City of Hamilton from the appellant (the "property"). In November 2014, the School Board authorized its staff to implement a land swap with the City by which much of the property would be exchanged for City lands. The appellant asserted that the Board's authorization triggered s. 41(1) of the Expropriations Act and obliged the Board to offer to re-convey the property to it. The appellant submitted that the application judge erred in failing to require the Board to meet its s. 41(1) obligation.

The Ontario Court of Appeal dismissed the substantive appeal, but allowed the costs appeal. While the court accepted some of the appellant's arguments, they did not affect the result.

Education - Topic 717

Education authorities - School commissions or boards - General - Sale, lease or purchase of land (incl. expropriation) - School Boards were required by s. 170(1) of the Education Act to "provide instruction and adequate accommodation" for their students, and were given power under s. 195(1) of the Act to expropriate a "school site" within their area of jurisdiction - The Ontario Court of Appeal held that a School Board's expropriation power could be used only to acquire a school site - The Board was not permitted to change the purpose for the expropriation - See paragraphs 19 and 49.

Expropriation - Topic 2320

Practice and procedure - Costs - General - In 2013, the respondent School Board expropriated a parcel of land from the appellant (the "property") - The appellant asserted that the School Board had abandoned the property, triggering s. 41(1) of the Expropriations Act and obliging the Board to offer to re-convey the property to it - The appellant submitted that the application judge erred in failing to require the Board to meet its s. 41(1) obligation - The Ontario Court of Appeal dismissed the substantive appeal - Regarding the appellant's costs appeal, the court held that there was no reason to extend the principle of full compensation for the costs of collateral civil litigation expropriated owners might bring to challenge the legality of the expropriation - Further, while the issue was novel, the lack of litigation around the meaning of s. 41 over the years suggested that there had been no burning public interest or need to have the legislation clarified - Nor was the appellant's position particularly reasonable - It pursued its own interest with full knowledge of the risks, as was its right, but there was no reason why costs should not simply follow the event as in the normal course - In particular, there was no reason to invoke the court's jurisdiction or discretion under rule 57.01(2) of the Rules of Civil Procedure to award costs against the successful party - However, there was also no basis in principle for a costs award exceeding the amount sought by the successful party, and in this case there was no basis for an award of substantial indemnity costs against the unsuccessful appellant - The application judge erred in awarding the School Board $58,815.46 (the amount of partial indemnity costs the appellant had sought), rather than $29,574.17 (the amount of substantial indemnity costs the Board had sought) - The court held that the School Board's claim for substantial indemnity costs of $28,363 should be reduced to the amount of partial indemnity costs sought by the Board in the application (range of $11,000- $14,000) - Accordingly, the court granted leave to appeal the application judge's costs award, set aside the award and substituted the amount of $14,000 all-inclusive for the application to be paid by the appellant to the respondent - The court fixed the costs of the appeal payable to the respondent School Board in the amount of $16,000, all-inclusive - This represented an amount that the appellant sought, and which, therefore, it had to be prepared to pay.

Expropriation - Topic 2324

Practice and procedure - Costs - Costs on appeal - [See Expropriation - Topic 2320 ].

Expropriation - Topic 2332

Practice - Costs - Of expropriating authority - Denial of - [See Expropriation - Topic 2320 ].

Expropriation - Topic 3925

Taking of title - Notice of expropriation - Statement of purpose of expropriation - [See Expropriation - Topic 4008 ].

Expropriation - Topic 4002

Taking of title - Statutory power - Interpretation - [See Education - Topic 717 and Statutes - Topic 2601 ].

Expropriation - Topic 4008

Taking of title - Statutory power - Land taken to be exchanged with third party for other land - In 2013, the respondent School Board expropriated a parcel of land located in the City of Hamilton from the appellant (the "property") - In November 2014, the School Board authorized its staff to implement a land swap with the City by which much of the property would be exchanged for City lands - The appellant asserted that the School Board's authorization triggered s. 41(1) of the Expropriations Act and obliged the Board to offer to re-convey the property to it - The appellant submitted that the application judge erred in failing to require the Board to meet its s. 41(1) obligation - The Ontario Court of Appeal rejected the submission - The School Board did not abandon the property when it authorized the land swap with the City in September and again in November 2014 - The motions did not operate as an admission binding on the Board that most of the property was "found to be unnecessary for the purposes of the expropriating authority" by the Board - The swap had not yet been executed by staff, and it appeared unlikely that it would be, although the Board had not yet rescinded the approvals - The Board's new plan did not contemplate any of the property being transferred to the City - The Board was set to use the property "for the purposes of the construction and operation of a secondary school and related amenities" consistent with the original notice of application - Thus, the Board had not changed its purposes for expropriating the property, and s. 41 of the Expropriations Act was not triggered - The application was premature - See paragraphs 38 to 81.

Expropriation - Topic 4010

Taking of title - Statutory power - Use of land other than that for which it was expropriated - [See Expropriation - Topic 4008 ].

Expropriation - Topic 4223

Taking of title - Abandonment or discontinuance - Right to reacquire land - [See Expropriation - Topic 4008 ].

Extradition - Topic 3906

Practice - Appeals - Evidence (incl. fresh evidence) - In 2013, the respondent School Board expropriated a parcel of land located in the City of Hamilton from the appellant (the "property") - In November 2014, the School Board authorized its staff to implement a land swap with the City by which much of the property would be exchanged for City lands - The appellant asserted that the School Board's authorization triggered s. 41(1) of the Expropriations Act and obliged the Board to offer to re-convey the property to it - The appellant submitted that the application judge erred in failing to require the Board to meet its s. 41(1) obligation - At the hearing of the appeal, the Board sought leave to admit the affidavit of Warling, the School Board's Manager of Accommodation and Planning, as fresh evidence - Her affidavit detailed the evolution of the joint project since the application was heard and supplemented the factual context - The Ontario Court of Appeal held that the evidence was admissible because it was relevant and credible, and did not infringe the due diligence requirement in R. v. Palmer - See paragraph 4.

Practice - Topic 7029

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Novel or important point - [See Expropriation - Topic 2320 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - [See Extradition - Topic 3906 ].

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Statutes - Topic 2601 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - The Ontario Court of Appeal stated that "The court must take a purposive approach to the interpretation of the Expropriations Act, not a 'strict construction' approach. ... The modern approach to statutory interpretation requires the court to consider the grammatical and ordinary sense of the words used, the broader context having regard to the scheme and objects of the Act, and the intention of the Legislature. There is no need to import a presumed intent when the actual intent is clear, and doing so in the absence of an irreducible ambiguity would be an error of law." - See paragraphs 46 and 52.

Cases Noticed:

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 4].

Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32; 206 N.R. 321; 97 O.A.C. 81, refd to. [para. 50].

Canada 3000 Inc. (Bankrupt), Re, [2006] 1 S.C.R. 865; 349 N.R. 1; 212 O.A.C. 338; 2006 SCC 24, refd to. [para. 51].

R. v. Dunn (C.) (2013), 309 O.A.C. 311; 2013 ONCA 539, refd to. [para. 51].

Toronto Standard Condominium Corp. No. 1908 v. Stefco Plumbing & Mechanical Contracting Inc. (2014), 325 O.A.C. 231; 2014 ONCA 696, refd to. [para. 51].

Tyendinaga Mohawk Council v. Brant - see Maracle et al. v. Brant et al.

Maracle et al. v. Brant et al. (2014), 322 O.A.C. 105; 2014 ONCA 565, refd to. [para. 51].

1420041 Ontario Inc. v. 1 King West Inc. (2012), 291 O.A.C. 23; 2012 ONCA 249, refd to. [para. 51].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 55].

Progressive Developments (1978) Ltd. and Empire Hotel (1960) Ltd. v. Winnipeg (City) (1982), 20 Man.R.(2d) 60; 145 D.L.R.(3d) 405 (C.A.), leave to appeal denied (1983), 50 N.R. 396; 27 L.C.R. 142n (S.C.C.), agreed with [para. 61].

Grauer Estate et al. v. Canada (1986), 1 F.T.R. 51 (T.D.), agreed with [para. 61].

Marisa Construction v. Toronto (City) (1998), 114 O.A.C. 314; 65 L.C.R. 81 (Div. Ct.), refd to. [para. 76].

DAM Investments Inc. v. Ontario (Minister of Finance)(2007), 226 O.A.C. 40; 2007 ONCA 527, refd to. [para. 93].

790668 Ontario Inc. et al. v. D'Andrea Management Inc. et al. (2015), 336 O.A.C. 383; 2015 ONCA 557, refd to. [para. 97].

Boucher v. Public Accountants Council (Ont.) et al. (2004), 188 O.A.C. 201; 71 O.R.(3d) 291 (C.A.), refd to. [para. 99].

Statutes Noticed:

Education Act, R.S.O. 1990, c. E-2, sect. 183 [para. 68]; sect. 195(1) [para. 19].

Expropriations Act, R.S.O. 1990, c. E-26, sect. 41(1) [para. 1 et seq.].

Counsel:

Frank Sperduti and Christel Higgs, for the appellant;

Paul R. Henry, for the respondent.

This appeal was heard on October 30, 2015, by Feldman, Lauwers and Benotto, JJ.A., of the Ontario Court of Appeal. Lauwers, J.A., delivered the following decision for the court on March 15, 2016.