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Divisional Court Upholds Expropriation Costs Award In Favour of County

In the recent decision of Willies Car & Van Wash Limited v. The Corporation of the County of Simcoe, the Divisional Court of Ontario upheld an award of costs by the Ontario Municipal Board’s against a claimant, pursuant to the Expropriations Act

 The claimant, a car wash business, claimed compensation before the OMB for injurious affection where no land was taken.  The claim was dismissed by the Board, and costs were awarded to the authority, the County of Simcoe, in the amount of $86,943.20.  The claimant appealed the costs award to the Divisional Court. 

 On appeal, the claimant’s position was that the costs award was excessive and unfair, and the Board had placed too much reliance on an offer to settle from the County prior to arbitration.  The claimant also specifically argued that the award would have a “chilling effect” by “raising the prospect of jeopardizing the principle of facilitating access to justice.” 

 The Divisional Court did not accept these arguments.  The Court noted that the risks associated with the claim were clearly outlined by the County prior to arbitration proceedings.  Despite this, the claimant advanced the matter to a hearing where it failed to prove injurious affection, and where it was found that the claim was statute barred in any event. 

 The Court concluded that while the costs awarded were high, they did not “fall outside the boundary of what is reasonable”.  The Court also remarked in the concluding passages of its decision that evidence of the car wash’s own costs could have been helpful in the determination of the costs award.  However, the claimant was unable to provide any detailed evidence of its counsel’s fees and disbursements, and this weighed against the appeal.

 The full text of the Court’s decision is available online:

Related Blogs

Learning of a Potential Expropriation

Landowners often learn of a potential expropriation long before it actually takes place. Owners will sometimes become aware that their lands are to be acquired/expropriated for an infrastructure project through a public consultation or information session.

Why is My Land Being Expropriated

Land can be expropriated for a variety of public purposes, depending on the institution or government authority carrying out the work. Most expropriation projects arise out of a need for new and improved public infrastructure, and arrive on the heels of environmental assessments which determine the best route or location for the project.

Legal Costs Under the Expropriations Act

The Expropriations Act is a remedial statute with the purpose of rendering the expropriated land owner economically whole. Accordingly, in addition to prescribing compensation for land taken and related impacts, the Act also prescribes the reimbursement of reasonable legal and professional costs incurred by an owner in the determination of compensation. The reimbursement of costs is contemplated under section 32 of the Act.

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