D.D.S. Investments Ltd. v. Toronto (City), (2010) 261 O.A.C. 12 (DC)

• Judge: McCombs, Dambrot and Sachs, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: March 26, 2010
• Jurisdiction: Ontario
• Citations: (2010), 261 O.A.C. 12 (DC);2010 ONSC 1393

DDS Inv. Ltd. v. Toronto (2010), 261 O.A.C. 12 (DC)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AP.049

D.D.S. Investments Ltd. (appellant) v. City of Toronto (respondent)

(351/06; 2010 ONSC 1393)

Indexed As: D.D.S. Investments Ltd. v. Toronto (City)

Court of Ontario

Superior Court of Justice

Divisional Court

McCombs, Dambrot and Sachs, JJ.

March 26, 2010.

Summary:

D.D.S. Investment Ltd. ("DDS") purchased vacant land in the City of Toronto for development. The City asked DDS to enter into easement agreements in respect of two subsurface pipelines on the land. DDS refused. The City ultimately expropriated two subsurface easements for the pipelines. DDS served notice of arbitration on the City and the Ontario Municipal Board to have the compensation determined under the Expropriations Act. The Board awarded DDS $56,000 for the value of the interest in the land taken, $30,000 for injurious affection, no award for business losses, and no award for interest or for costs. DDS appealed on the ground, among others, that the Board erred in making no award for business losses. At the outset of the appeal, DDS applied for leave to amend its Notice of Appeal and to adduce fresh evidence in relation to its claims for injurious affection and for business losses.

The Ontario Divisional Court dismissed the application for leave to amend and to adduce fresh evidence. The owner failed the requirement that the evidence could not have been adduced at trial despite the exercise of due diligence. The court dismissed the appeal. The Board's decision was supported by the evidence, was transparent and intelligible and easily fell within the range of reasonable outcomes.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Expropriation - Topic 2207 ].

Expropriation - Topic 180

Right to compensation - Injurious affection - Resulting from easement - [See second Expropriation - Topic 182 ].

Expropriation - Topic 182

Right to compensation - Injurious affection - Business losses - The Ontario Divisional Court stated that the determination of compensable business losses "is essentially a finding of fact, but it does involve a consideration of s. 13(2)(b) of the Expropriations Act, which provides that the compensation payable to an owner of expropriated land includes damages attributable to disturbance. The term 'disturbance' is not defined in the Act, but is illustrated in s. 18 and s. 19. Of relevance here, s. 18(1) provides that the expropriating authority shall pay to an owner, in respect of disturbance, such reasonable costs as are the natural and reasonable consequences of the expropriation " - The court also considered the meaning of "disturbance" was addressed by the leading jurisprudence - See paragraphs 30 to 32.

Expropriation - Topic 182

Right to compensation - Injurious affection - Business losses - An owner (DDS) purchased vacant property in the City of Toronto for development - The City asked DDS to enter into easement agreements in respect of two subsurface pipelines on the land - DDS refused - The City ultimately expropriated two subsurface easements for the pipelines - The owner claimed business losses before the Ontario Municipal Board - It claimed that it would have been able to develop the land but for the delay occasioned by the City in processing its site plan - The Board found no evidence that the City elongated the planning process, and concluded that there was no causal nexus between the expropriation process and any business losses suffered - The Ontario Divisional Court upheld the decision - The Board clearly understood the law - "Disturbance costs must be the natural and reasonable consequences of the expropriation" - The Board's decision was supported by the evidence, was transparent and intelligible and easily fell within the range of reasonable outcomes - See paragraphs 25 to 29, 41 and 42.

Expropriation - Topic 1306

Measure of compensation - Elements of compensation - Business disturbance - [See first Expropriation - Topic 182 ].

Expropriation - Topic 2207

Practice and procedure - Appeals - Standard or scope of review by courts of decisions of boards - An owner appealed from the determination by the Ontario Municipal Board to award no damages for business losses caused by the expropriation of easements - The owner argued that the Board erred in finding that there was no causal connection between the actions of the municipality and the business losses on account of delay - An issue was the applicable standard of review - The Expropriations Act contained a statutory right of appeal to the court (s. 31(1)), on a question of law or fact or both - The owner submitted that the standard of review was one of correctness - The Ontario Divisional Court concluded that the standard was one of reasonableness - "This is a question of mixed fact and law that involves applying the law concerning the damages to be awarded in the expropriation context, an area squarely with the Board's specialized expertise. As such, the standard of reasonableness applies to this appeal" - See paragraphs 34 to 40.

Expropriation - Topic 2260

Practice and procedure - Evidence - Evidence re injurious affection (incl. fresh evidence) - A municipality expropriated two subsurface easements for two existing pipelines, including a water main - The Municipal Board awarded $30,000 as damages for injurious affection, being the cost of relocating the water main - At the outset of the appeal, the owner applied for leave to amend its Notice of Appeal to add that the $30,000 be increased to $143,700 - It wanted to argue that subsequent events justified altering the decision, and applied to adduce fresh evidence - The Ontario Divisional Court dismissed the application - The evidence could not be expected to have affected the result - The proposed fresh evidence was the same evidence that was before the Board, it was factored into the Board's award for injurious affection, and could not meet the requirement that it could not have been adduced at trial despite the exercise of due diligence - See paragraphs 48 to 60.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - In the context of an expropriation, an issue was whether an owner should be permitted to adduce fresh evidence in relation to its claim for business losses - The proposed amendment to the Notice of Appeal asked that the Municipal Board reconsider the claim, taking into account evidence of further business delay losses suffered by the owner since the Board issued its decision - The Ontario Divisional Court stated that the request "reflects a fundamental error. Litigation is intended to be final, subject to error. Fresh evidence may be admitted where it bears upon a potentially decisive issue at trial and could reasonably be expected to have affected the result. But when it comes to the assessment of future damages or losses, boards, like Courts, are expected to do their best to make an appropriate assessment at the hearing. The parties cannot return to the Board and ask that the matter decided by it be reopened every time that subsequent events might arguably alter the quantum of damages originally assessed" - In the result, the court refused to admit the evidence - The fundamental impediment to the admission of the evidence was that even if it was believed, it could not reasonably be expected to affect the result of the appeal - See paragraphs 61 to 63.

Cases Noticed:

Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32; 206 N.R. 321; 97 O.A.C. 81, consd. [para. 31].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 35].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 36].

Toronto (City) v. R & G Realty Management Inc. (2009), 254 O.A.C. 66 (Div. Ct.), refd to. [para. 36].

Toronto (City) v. Romlek Enterprises et al. (2009), 250 O.A.C. 368 (Div. Ct.), refd to. [para. 36].

Ottawa (City) v. TDL Group Corp. (2009), 256 O.A.C. 142 (Div. Ct.), refd to. [para. 36].

Antrim Truck Centre Ltd. v. Ontario (Minister of Transportation) (2010), 258 O.A.C. 1 (Div. Ct.), appld. [para. 38].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 55].

R. v. Nielsen and Stolar, [1988] 1 S.C.R. 480; 82 N.R. 280; 52 Man.R.(2d) 46, refd to. [para. 55].

Monteiro v. Toronto-Dominion Bank et al., [2005] O.A.C. Uned. 167 (Div. Ct.), refd to. [para. 55].

Dew Point Insulation Systems Inc. v. JV Mechanical Ltd. et al. (2009), 259 O.A.C. 179 (Div. Ct.), refd to. [para. 55].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Expropriations Act, R.S.O. 1990, c. E-26, sect. 13 [para. 48]; sect. 13(2)(b), sect. 18, sect. 19 [para. 30]; sect. 32 [para. 44]; sect. 33 [para. 43].

Rules of Civil Procedure (Ont.), rule 61.08 [para. 54].

Counsel:

Robert G. Ackerman, for the appellant;

Brendan O'Callaghan, for the respondent.

This appeal was heard at Toronto, Ontario, on March 3-4, 2010, by McCombs, Dambrot and Sachs, JJ., of the Ontario Divisional Court. Dambrot, J., delivered the following judgment and reasons for judgment of the Court, released on March 26, 2010.