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September 26, 2016

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: http://www.canlii.org/en/on/onscdc/doc/2016/2016onsc5786/2016onsc5786.html

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