D.D.S. Investments Ltd. v. Toronto (City), 2010 ONSC 1393

• Judge: McCombs, Dambrot and Sachs, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: March 26, 2010
• Jurisdiction: Ontario
• Citations: 2010 ONSC 1393;(2010), 263 O.A.C. 383 (DC)

DDS Inv. Ltd. v. Toronto (2010), 263 O.A.C. 383 (DC)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. AP.007

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:

The City of Toronto expropriated two subsurface easements on DDS' land for a storm sewer and a water main. The Ontario Municipal Board awarded DDS compensation in the amount of $56,000 for the value of the interest taken and $30,000 for injurious affection. The Board made no award for business losses and increased interest. DDS appealed, and also sought leave to file an amended notice of appeal and to adduce new evidence.

The Ontario Divisional Court dismissed the appeal and denied leave to amend the notice of appeal and adduce new evidence.

Expropriation - Topic 2207

Practice and procedure - Appeals - Standard or scope of review by courts of decisions of boards - The City of Toronto expropriated water main and storm sewer easements on DDS' land - DDS claimed compensation for the business losses that allegedly resulted from the expropriation - DDS argued that it wanted to set up a waste recycling business and that there was delay in getting the necessary municipal and provincial government approvals - In 2006, the Ontario Municipal Board declined to award DDS compensation for business losses where there was no nexus between the taking of the easements and the claim for business loss - DDS appealed - At issue was the standard of review applicable to the Board's decision - The Ontario Divisional Court held that the applicable standard was reasonableness - The question in issue was a question of mixed fact and law that involved applying the law concerning the damages to be awarded in the expropriation context, an area squarely within the Board's specialized expertise - See paragraphs 34 to 40.

Expropriation - Topic 3103

Compensation awards - Particular awards - Injurious affection - Business losses - DDS bought land in Toronto knowing that there was a water main and a storm sewer underneath it - DDS wanted to build a waste treatment facility on the land - Cumming, J., ordered the parties to negotiate to provide the city with an easement for the water main and the storm sewer and for compensation for DDS - The negotiations were unsuccessful - The city expropriated the easements - DDS made a claim for business losses, arguing that it would have been able to construct its facility and get it running sooner but for delay by the city in processing DDS' site plan and steps taken by the city that resulted in a delay in approval by the Ministry of the Environment - The Ontario Municipal Board dismissed the claim absent a nexus between the taking of the easements and the claim for business loss - DDS knew that the water main and the storm sewer could impede their plans - The city did not elongate or impede the planning process but the absence of a professional planner contributed to it - The Ontario Divisional Court upheld the decision as reasonable - See paragraphs 25 to 42.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - In 2006, the Ontario Municipal Board awarded DDS expropriation compensation for injurious affection - DDS appealed, and sought to adduce new evidence in respect of its difficulties in obtaining financing for the operations it had envisaged on the subject land - The Ontario Divisional Court denied the request and dismissed the appeal - The proposed fresh evidence was the same evidence that was before the Board in 2005, was factored into the Board's award, 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" - The City of Toronto expropriated water main and storm sewer easements on DDS' land - DDS claimed compensation for the business losses that allegedly resulted from the expropriation - DDS argued that it wanted to set up a waste recycling business and that there was delay in getting the necessary municipal and provincial government approvals - In 2006, the Ontario Municipal Board declined to award DDS compensation for business losses where there was no nexus between the taking of the easements and the claim for business loss - DDS appealed, and sought to adduce new evidence to support an allegation of additional delay in setting up its waste recycling business on the subject land - The Ontario Divisional Court denied the request and dismissed the appeal - Even if the new evidence was believed, it could not affect the result of the appeal - If there was no nexus between the taking and the business losses in respect of the original delay, there was no nexus respecting the additional delay - See paragraphs 61 to 66.

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, consd. [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 (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.), folld. [para. 38].

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

R. v. Stollar - see R. v. Nielsen and Stolar.

R. v. Stolar - see R. v. Nielsen and Stolar.

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, [2005] O.J. No. 4749 (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].

Counsel:

Robert G. Ackerman, for the appellant;

Brendan O'Callaghan, for the respondent.

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