Parks et al. v. Ontario (Minister of Transportation), (1997) 109 O.A.C. 1 (DC)

• Judge: Smith, A.C.J.O.C., O'Driscoll and Bell, JJ.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: October 21, 1997
• Jurisdiction: Ontario
• Citations: (1997), 109 O.A.C. 1 (DC)

Parks v. Ont. (1997), 109 O.A.C. 1 (DC)

MLB headnote and full text

Temp. Cite: [1997] O.A.C. TBEd. NO.004

Glenn John Parks, Daniel J. McKenna, The Estate of Thomas McKenna deceased, John Malcolm Airth, Jean Edith Airth, M. Bravar Custom Builders Ltd., Gordon Hill, Lawrence Casey and 383932 Ontario Limited (claimants/respondents) v. Her Majesty The Queen in right of Ontario as represented by the Minister of Transportation (respondent/appellant)

(No. 938/95)

Indexed As: Parks et al. v. Ontario (Minister of Transportation)

Ontario Court of Justice

General Division

Divisional Court

Smith, A.C.J.O.C., O'Driscoll and Bell, JJ.

October 21, 1997.

Summary:

Ontario expropriated eight parcels of land to construct a highway. The landowners appealed the compensation award. The Ontario Municipal Board allowed the appeal and increased the compensation for market value and injurious affection. Ontario appealed.

The Ontario Divisional Court dismissed the appeal.

Expropriation - Topic 182

Right to compensation - Injurious affec­tion - Business losses caused by works for which land taken - Ontario expropriated eight parcels of land to construct a high­way - Prior to the expropriation, all the surrounding land was developable as po­tential urban area - The Ontario Municipal Board held that the land west of the new highway probably would have been devel­oped but for the highway - After the expropriation, the property to the west of the new highway was isolated and could not be developed and the land to the east became landlocked and, therefore, its value declined - The Board awarded the land­owners compensation for injurious affec­tion for loss of development potential - The Ontario Divisional Court upheld the injurious affection award - See paragraphs 44 to 56.

Expropriation - Topic 188

Right to compensation - Injurious affec­tion - Severance resulting in restriction of access - [See Expropriation - Topic 182 ].

Expropriation - Topic 1007

Measure of compensation - Valuation of land - Highest and best use - Determina­tion of - Ontario expropriated eight par­cels of land to construct a highway - The highest and best use of the land was hold­ing for future development - The issue was the length of the holding period - The landowners claimed that the holding period was between 10 and 15 years - The muni­ci­pality claimed that it was beyond 15 years - The Ontario Municipal Board considered the history of the surrounding development and held that there was more than a 50% possibility that that develop­ment would have been extended into the area where the subject land was situated within 10 to 15 years - The Ontario Divi­sional Court held that the Board was entitled to reach that decision based on the evidence before it - See paragraphs 22 to 33.

Expropriation - Topic 1130

Measure of compensation - Potential value - Undeveloped land - [See Expropriation - Topic 1007 ].

Expropriation - Topic 1204

Measure of compensation - Injurious affection or damage to unexpropriated portion - Value of severed land - [See Expropriation - Topic 182 ].

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, refd to. [para. 14].

Farlinger Developments Ltd. v. East York (Borough) (1975), 8 L.C.R. 112 (Ont. C.A.), refd to. [para. 30].

Torvalley Development Ltd. et al. v. Met­ropolitan Toronto & Region Conserva­tion Authority (1989), 33 O.A.C. 286; 42 L.C.R. 101 (C.A.), refd to. [para. 31].

Salvation Army, Canada East v. Ontario (Minister of Government Services (1986), 12 O.A.C. 283; 34 L.C.R. 193 (C.A.), refd to. [para. 35].

Boyd v. Ontario (Ministry of Transporta­tion (1995), 55 L.C.R. 246 (O.M.B.), refd to. [para. 54].

R. v. Elgin Realty Co., [1943] S.C.R. 49, refd to. [para. 63].

Airport Corporate Centre Inc. v. Ontario (Minister of Transportation) (1996), 89 O.A.C. 174; 58 L.C.R. 2 (Div. Ct.), refd to. [para. 63].

Souter (A.M.) & Co. v. Hamilton (City) (1973), 1 O.R.(2d) 760 (C.A.), refd to. [para. 69].

Statutes Noticed:

Expropriations Act, R.S.O. 1990, c. E-26, sect. 1(1), sect. 13(1), sect. 13(2)(a), sect. 13(2)(c), sect. 14(1), sect. 14(3), sect. 14(4)(b) [para. 7]; sect. 31(1) [para. 1].

Counsel:

T.C. Marshall, Q.C., and L.G. Frelick, for the appellant;

J.G. Parkinson, Q.C., and D.B. Kelly, for G.J. Parks, D.J. McKenna, Estate of Thomas McKenna, Gordon Hill and 283932 Ontario Ltd.;

W.R. Hunter for J.M. Airth, J.E. Airth, M. Bravar Custom Builders Ltd. and Law­rence Casey.

This appeal was heard in Ottawa, Ontario, on November 12, 13 and 14, 1996, before Smith, A.C.J.O.C., O'Driscoll and Bell, JJ., of the Ontario Divisional Court.

O'Driscoll, J., delivered the following judgment for the court and released the decision on October 21, 1997.