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The Importance of Independent Expert Advice in Expropriation

The recent OLT decision of Dean Adams cob Lube N Go v. Waterloo (Region) is a reminder to all expropriated parties of the importance of obtaining objective independent expert advice. The decision could be summarized by this sentence from the Tribunal:

“Unfortunately, and unusually, the claimant chose not to tender objective independent expert evidence on this crucial aspect".

In this decision, the claimant operated an automotive business at the time the Region of Waterloo began road work near the claimant’s business. The claimant felt the Region’s works resulted in impacts to the business and a claim was advanced for compensation. The claim was for injurious affection pursuant to the Expropriations Act.

The expropriation legislation provides a mechanism for parties to pursue claims for injurious affection when no land is taken by the authority, such as the case in question. Different and more stringent criteria are required to be met where no land is taken. Certain evidentiary requirements and thresholds must be met in order to substantiate any type of claim. This hurdle was found to not have been met in this decision.

One of the claimant’s witnesses attempted to provide commentary on the business losses but was deemed to not possess the necessary professional credentials or experience to offer such opinion evidence.

The Tribunal found that the claimant’s evidence was not sufficient to provide a foundation for an award of compensation. The Tribunal was not able to rely upon the evidence offered by the claimant.

In conclusion, the Tribunal agreed that even though there was no doubt that there was considerable construction activities occurring near the claimant’s business, there was “simply no reliable basis upon which this Claimant’s business loss claim can be awarded”.

It had not been proven that the construction created a “constant, frequent or pervasive impairment of access to this location or [that it] amounted to a nuisance and interference with the Claimant’s business for which damages are recoverable in law”.

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