Windsor (City) v. Paciorka Leaseholds Ltd. et al.,

JurisdictionOntario
JudgeDoherty,LaForme,Turnbull
Neutral Citation2012 ONCA 431
Citation(2012), 293 O.A.C. 176 (CA),2012 ONCA 431,293 OAC 176,(2012), 293 OAC 176 (CA),293 O.A.C. 176
Date04 April 2012
CourtCourt of Appeal (Ontario)

Windsor v. Paciorka Leaseholds Ltd. (2012), 293 O.A.C. 176 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. JL.003

The Corporation of the City of Windsor (appellant) v. Paciorka Leaseholds Limited, Bruce Paciorka, Gordon Paciorka, Elizabeth Frey, Hilda Fisher House, Carlos Rafael Macchiavello, Virginia Rosalie Macchiavello, Frieda Pope, Rachel Lydia Beattie, Sharon Lily Pope, Nancy Louise Hillman and Judy Diane Listheaghe (respondents)

(C54542; 2012 ONCA 431)

Indexed As: Windsor (City) v. Paciorka Leaseholds Ltd. et al.

Ontario Court of Appeal

Doherty and LaForme, JJ.A. and Turnbull, J.(ad hoc)

June 22, 2012.

Summary:

Beginning in 2004, the City of Windsor expropriated land owned by the respondents in order to preserve an area with significant plant and animal species. Not all of the respondents' lands were expropriated. The respondents sought compensation. The City submitted that the expropriation scheme did not begin until 2002, and that the Provincial Policy Statement in 1996 (PPS), issued as part of a province-wide environmental policy pursuant to the Planning Act, significantly reduced the market value. The Ontario Municipal Board agreed with the respondents that the expropriation scheme began with governmental actions in 1983. The Board directed the City to pay the respondents: (a) $3,771,384 for the market value of lands expropriated; (b) $767,000 for injurious affection to the lands remaining in the respondents' ownership; interest on the above awards as of August 11, 1997; and (c) $26,500 to one respondent as disturbance damages. The City appealed all but the portion of the award relating to disturbance damages.

The Ontario Divisional Court, Sachs, J., dissenting, in a decision reported at (2011), 281 O.A.C. 281, dismissed the appeal. The City was granted leave to appeal.

The Ontario Court of Appeal allowed the appeal, substantially for the dissenting reasons of Sachs, J. On any of the three possible interpretations of the Board's reasons, the Board did not give reasonable consideration to the impact of the PPS on the market value of the expropriated lands. That failure rendered the Board's ultimate determination of market value unreasonable. The court also agreed with Sachs, J., that the Board failed in its assessment of injurious affection damages to properly limit those damages to any diminution in value of the lands caused by the City's acquisition of the respondents' other lands. The court directed a new hearing before a differently constituted panel of the Board.

Expropriation - Topic 176

Right to compensation - Injurious affection - General - [See first Expropriation - Topic 1038 ].

Expropriation - Topic 1038

Measure of compensation - Methods of valuation - Market value - The respondents' lands were expropriated by the City of Windsor, beginning in 2004 - Not all of the respondents' lands were expropriated - The Ontario Court of Appeal stated that the Expropriations Act required the expropriating authority "to pay to the owner the 'market value of the land'. In determining market value, no account can be taken of any increase or decrease in the value of the land attributable to the government actions that culminated in the expropriation: see Expropriations Act, s. 14(4)(b) ... These government actions are collectively referred to as the 'expropriation scheme'. In addition to compensation for the market value of expropriated property, if the expropriating authority takes only part of the owner's land, the owner is also entitled to injurious affection damages for any reduction in the market value of his or her remaining land caused by the acquisition of part of the owner's land" - See paragraph 1.

Expropriation - Topic 1038

Measure of compensation - Methods of valuation - Market value - The Ontario Court of Appeal stated that "[a] person whose land is expropriated is entitled to receive fair market value for his or her land. In determining market value, s. 14 of the Expropriations Act requires the OMB [Ontario Municipal Board] to eliminate any increase or decrease in the value of the property arising from the expropriation or its imminence. In other words, it is the OMB's task to determine the scope of the expropriation scheme, and the highest and best use for the expropriated lands absent the effects of that scheme" - See paragraph 22.

Expropriation - Topic 1038

Measure of compensation - Methods of valuation - Market value - Beginning in 2004, the City of Windsor expropriated land owned by the respondents in order to preserve an area with significant plant and animal species - The respondents sought compensation - The City submitted that the expropriation scheme did not begin until 2002, and that the Provincial Policy Statement in 1996 (PPS), issued as part of a province-wide environmental policy pursuant to the Planning Act, significantly reduced the market value - The Ontario Municipal Board agreed with the respondents that the expropriation scheme began with governmental actions in 1983 - The Board's reasons did not indicate how the Board treated the PPS - The majority in the Divisional Court deferred to the Board's decision - The City appealed - The Ontario Court of Appeal held that the majority in the Divisional Court erred in law in deferring to the Board's decision in the face of the Board's unreasonable treatment of the potential impact of the PPS on the market value - "[T]here are three possible interpretations of the Board's treatment of the PPS. It may have regarded the PPS as part of the expropriation scheme; it may have regarded the PPS as independent of the expropriation scheme, but as having no effect on the market value of the expropriated lands; or it may have failed entirely to consider the PPS in its analysis" - On any of the three possible interpretations of the Board's reasons, its treatment of the PPS was unreasonable - See paragraphs 23 to 31.

Expropriation - Topic 1058

Measure of compensation - Factors or considerations affecting valuation - Development schemes or plans - [See third Expropriation - Topic 1038 ].

Expropriation - Topic 1090

Measure of compensation - Time for valuation - General - [See third Expropriation - Topic 1038 ].

Expropriation - Topic 1202

Measure of compensation - Injurious affection or damage to unexpropriated portion - Valuation of reduction in value of remaining lands - [See Expropriation - Topic 1213 ].

Expropriation - Topic 1213

Compensation - Measure of - Injurious affection - Where expropriated land in restricted development area - The City of Windsor expropriated land owned by the respondents in order to preserve an area with significant plant and animal species - The respondents maintained that the value of their remaining properties was reduced by the expropriation, and claimed damages for injurious affection under s. 13(2)(c) of the Expropriations Act - The City appealed the assessment of the Ontario Municipal Board - The Divisional Court declined to interfere with the Board's assessment - The City appealed - The Ontario Court of Appeal held that the Board "erred in law in interpreting the Expropriations Act as awarding injurious affection damages for any loss in value of the remaining properties attributable to the expropriation scheme. The Board's interpretation of the Act is, in our view, an unreasonable one. In assessing injurious affection damages, the Board should have focussed exclusively on damages caused to the respondents' remaining properties by the City's acquisition of the related lands. The majority in the Divisional Court erred in law in deferring to the Board's unreasonable assessment" - See paragraphs 32 to 42.

Expropriation - Topic 2207

Practice and procedure - Appeals - Standard or scope of review by courts of decisions of boards - The City of Windsor appealed from an order of the Ontario Municipal Board (OMB) - The Divisional Court assessed the Board's determination of which of the various government actions formed part of the expropriation scheme by applying a reasonableness standard of review - The majority dismissed the appeal - The City was granted leave to appeal - The Ontario Court of Appeal agreed that reasonableness was the appropriate standard - "The determination of which of the various government actions form part of the expropriation scheme is a factual one that engages squarely the OMB's specialized expertise in applying the relevant legal principles under the Expropriations Act. The high degree of deference built into the reasonableness standard is fully warranted" - See paragraph 18.

Expropriation - Topic 2207

Practice and procedure - Appeals - Standard or scope of review by courts of decisions of boards - The City of Windsor appealed from an order of the Ontario Municipal Board - A majority in the Divisional Court dismissed the appeal - The City was granted leave to appeal - The Ontario Court of Appeal stated that "[t]he question of whether the Board properly assessed injurious affection damages potentially raises more than one issue. The appropriate standard of review may vary from issue to issue. The City's submissions focus on the contention that the Board failed to apply the measure of damages contemplated by the definition of injurious affection found in the Expropriations Act. This argument raises a question of law, and more specifically a question of statutory interpretation. Legal questions are generally reviewed on a correctness standard. However, a more deferential standard of reasonableness may be applied where an administrative tribunal is interpreting a statute closely connected to its core function and with which the tribunal has a particular familiarity or expertise ... We need not decide which standard of review is appropriate. In our view, the Board's approach to injurious affection damages is contrary to the plain language of the Expropriations Act, as interpreted by this court. That approach is both wrong in law and unreasonable. It cannot withstand appellate review even using the more deferential standard of reasonableness" - A further issue raised on the appeal, the date from which interest should run on the Board's award, "falls squarely within the Board's discretion and is reviewable on a reasonableness standard" - See paragraphs 19 and 20.

Cases Noticed:

Pointe Gourde Quarrying & Transport Co. v. Sub-Intendent of Crown Lands, [1947] A.C. 565 (P.C.), refd to. [para. 1].

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. 18].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 19].

Statutes Noticed:

Expropriations Act, R.S.O. 1990, c. E-26, sect. 13(2)(c) [para. 32]; sect. 14(4)(b) [para. 1].

Counsel:

Stephen F. Waqué and Frank Sperduti, for the appellant;

Paul Henry and Robert Lawson, for the respondents.

This appeal was heard on April 4, 2012, before Doherty and LaForme, JJ.A. and Turnbull, J.(ad hoc), of the Ontario Court of Appeal. The Court released the following judgment on June 22, 2012.

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4 practice notes
  • Top 5 Civil Appeals (July 2012)
    • Canada
    • Mondaq Canada
    • July 24, 2012
    ...Bank of Commerce, 2012 ONCA 444 (Winkler C.J.O., Lang and Watt JJ.A.), June 26, 2012 Windsor (City) v. Paciorka Leaseholds Limited, 2012 ONCA 431 (Doherty and LaForme JJ.A., and Turnbull J. (ad hoc)), June 22, 2012 1. Baglow v. Smith, 2012 ONCA 407 (Goudge, Sharpe and Blair JJ.A.), June 14,......
  • 1353837 Ontario Inc. v. City of Stratford (Corporation), 2018 ONSC 71
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • January 3, 2018
    ...of the Expropriations Act and in legal questions closely related to the Act. [17] In Windsor (City) v. Paciorka Leaseholds Ltd., 2012 ONCA 431, 111 O.R. (3d) 431, the Court of Appeal also applied a reasonableness standard of review to an Ontario Municipal Board determination dealing with ex......
  • Windsor (City) v. Paciorka Leaseholds Ltd. et al., (2012) 445 N.R. 396 (Motion)
    • Canada
    • Supreme Court (Canada)
    • November 22, 2012
    ...and Judy Diane Listhaeghe v. Corporation of the City of Windsor , a case from the Ontario Court of Appeal dated June 22, 2012. See 293 O.A.C. 176; 2012 ONCA 431. See Bulletin of Proceedings taken in the Supreme Court of Canada , November 23, 2012. Motion dismissed. [End of document] : 0.000......
  • 1520658 Ontario Inc. v. Her Majesty The Queen, 2017 ONSC 4141
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • July 5, 2017
    ...land might be expected to realize if sold in the open market by a willing seller to a willing buyer. Windsor v. Paciorka Leaseholds Ltd., 2012 ONCA 431 provides guidance the interpretation of s. 14 of the Expropriations Act. In that case, the City of Windsor expropriated lands from landowne......
3 cases
  • 1353837 Ontario Inc. v. City of Stratford (Corporation), 2018 ONSC 71
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • January 3, 2018
    ...of the Expropriations Act and in legal questions closely related to the Act. [17] In Windsor (City) v. Paciorka Leaseholds Ltd., 2012 ONCA 431, 111 O.R. (3d) 431, the Court of Appeal also applied a reasonableness standard of review to an Ontario Municipal Board determination dealing with ex......
  • Windsor (City) v. Paciorka Leaseholds Ltd. et al., (2012) 445 N.R. 396 (Motion)
    • Canada
    • Supreme Court (Canada)
    • November 22, 2012
    ...and Judy Diane Listhaeghe v. Corporation of the City of Windsor , a case from the Ontario Court of Appeal dated June 22, 2012. See 293 O.A.C. 176; 2012 ONCA 431. See Bulletin of Proceedings taken in the Supreme Court of Canada , November 23, 2012. Motion dismissed. [End of document] : 0.000......
  • 1520658 Ontario Inc. v. Her Majesty The Queen, 2017 ONSC 4141
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • July 5, 2017
    ...land might be expected to realize if sold in the open market by a willing seller to a willing buyer. Windsor v. Paciorka Leaseholds Ltd., 2012 ONCA 431 provides guidance the interpretation of s. 14 of the Expropriations Act. In that case, the City of Windsor expropriated lands from landowne......
1 firm's commentaries
  • Top 5 Civil Appeals (July 2012)
    • Canada
    • Mondaq Canada
    • July 24, 2012
    ...Bank of Commerce, 2012 ONCA 444 (Winkler C.J.O., Lang and Watt JJ.A.), June 26, 2012 Windsor (City) v. Paciorka Leaseholds Limited, 2012 ONCA 431 (Doherty and LaForme JJ.A., and Turnbull J. (ad hoc)), June 22, 2012 1. Baglow v. Smith, 2012 ONCA 407 (Goudge, Sharpe and Blair JJ.A.), June 14,......

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