ISSUE DATE: July 21, 2008 LC040001 Ontario Municipal Board Commission des affaires municipales de l Ontario Beverly Wozniak (Claimant) has made an application to the Ontario Municipal Board under section 26 of the Expropriations Act, R.S.O. 1990, c. E.26, as amended, for determination by this Board of the compensation to be paid by the Ministry of Transportation of Ontario (Respondent) for land known as Parcel 8430 and Parcel 8490, District of Parry Sound, South Section, Township of Humphrey, formerly Township of Conger, now in the Municipality of Seguin and being firstly, Part Lot 3, Concession 6, Township of Humphrey being the whole of the said lot excepting the right-of-way of the Canadian Pacific Railway, containing 3.56 acres more or less; secondly, Part Lot 4, Concession 6, Township of Humphrey, formerly Township of Conger, now in the Municipality of Seguin, and being the whole of the said lot excepting the right-of-way of the Canadian Pacific Railway, containing 4.73 acres more or less OMB File: L040001 The Ministry of Transportation has brought a motion before the Ontario Municipal Board for an order granting the Respondent access to the subject property for the purpose of carrying out a remedial assessment and such other assessments as are necessary for compliance with the Ministry of the Environment and for assessing any claims in the herein Expropriation Arbitration The Ministry of Transportation has brought a motion before the Ontario Municipal Board for an order that the method employed by the Respondent will primarily have regard to the safety of the assessors/surveyors attending on the subject property. A P P E A R A N C E S : Parties Beverly Wozniak The Ministry of Transportation Counsel S. Rayman R.A. Richardson MEMORANDUM OF ORAL DECISION DELIVERED BY S. J. STEFANKO ON JULY 10, 2008 AND ORDER OF THE BOARD Nature of the Hearing The Ministry of Transportation ( MTO ) has brought a motion ( Motion for Particulars ) for particulars of the damages sustained by Beverly Wozniak ( claimant )
- 2 - LC040001 and set out in her Notice of Arbitration and Statement of Claim ( Statement of Claim ) dated January 5, 2004 along with a motion ( Motion for Disbursements ) for an Order requiring the Claimant to pay $5,825.56 for the cost of photocopies prepared by the MTO. The Claimant has also brought a motion ( Relevant Documents Motion ) for an order directing the MTO to serve a further and better Affidavit of Document. I will deal with each of these motions separately. Motion for Particulars During the course of this motion, the parties negotiated an agreement to deal with issues raised. On consent, the parties agreed as follows: (a) Before September 1, 2008, the claimant will advise the MTO of what elements of damages in paragraph 39 of the Statement of Claim are to be pursued by the Claimant and to clarify the various subparagraphs of paragraph 39 if necessary. (b) During the weeks of November 24, 2008 and December 1, 2008, examinations for discovery shall take place with the discovery of the Claimant to proceed first and the discovery of MTO to follow, subject to the availability of the parties. (c) All undertakings to be delivered no later than February 1, 2009. (d) Any motion arising from the discovery process shall be returnable by March 31, 2009. The parties shall advise each other if a motion is to be brought, by February 15, 2009. (e) Any further examinations required shall take place by April 30, 2009. (f) Expert reports shall be exchanged on June 30, 2009 and reply reports shall be exchanged on August 31, 2009.
- 3 - LC040001 (g) The Claimant will particularize its damages claimed in paragraph 39 of the Statement of Claim by September 15, 2009. Motion for Disbursements The MTO argues that the number of documents photocopied for the Claimant was beyond the realm of reasonableness and that Rule 30.04(7) of the Rules of Civil Procedure creates an obligation on the Claimant to pay for any document requested and received. On the other hand, the Claimant argues that the MTO request for reimbursement is entirely inconsistent with custom and practice and flies in the face of the spirit and intent of s.32 of the Expropriations Act. I concur with the submissions of the Claimant. The provisions of rules 30.04(7) of the Rules of Civil Procedure are imported into Board practice by Rule 33 of the Rules of Practice and Procedure ( Board Rules ). Rule 33 specifically tempers the application of Rule 30.04(7) by stating unless the Board orders otherwise. In my view, I am bound by the requirement in Rule 3 of the Board s Rules which states that the Rules are to be interpreted to insure the just, most expeditious and least expensive determination of every proceeding on its merits. If I were to rule in favour of the MTO on this point, I would be condoning a deviation from established practice on its part. I am not prepared to do so. I am also guided in this regard by the comments of Mr. Justice Cory in Dell Holdings Ltd. v. Toronto Area Transit Operating Authority [1997] 1 S.C.R. 32: The expropriation of property is one of the ultimate exercises of governmental authority. To take all or part of a person s property constitutes a severe loss and a very significant interference with a citizen s private property rights. It follows that the power of an expropriating authority should be strictly construed in favour of those whose rights have been affected It follows that the Expropriations Act should be read in a broad and purposive manner in order to comply with the aim of the Act to fully compensate the landowner whose property has been taken.
- 4 - LC040001 Based on the foregoing the motion for reimbursement of photocopying expenses is dismissed. Costs in relation to this decision are reserved for the panel which conducts the hearing. Relevant Documents Motion Again the parties reached an accommodation. On consent they agreed that the MTO is to produce the relevant documents as set out in subparagraphs 1(a) to and including 1(q) of the Claimant s Notice of Motion dated June 27, 2008. These subparagraphs are set out on Attachment 1 which is annexed hereto. It is so Ordered. S.J. Stefanko S. J. STEFANKO MEMBER
ATTACHMENT 1 Wozniak v. Ministry of Transportation LC040001 (Motion of July 10, 2008) Consent Order arising from Claimant s Motion: On consent, the Board orders the Respondent to produce the documents as set-out in subparagraphs 1(a) to 1(q) of the Notice of Motion, in the event that it has not already done so, which are as follows: a. All documents, correspondence and/or communications relating to the project and works for which the property belonging to Mrs. Wozniak (the Subject Property ) was expropriated (the Works ), passing between the MTO and its contractors, subcontractors and/or agents for the Works, including but not limited to Pioneer Construction (collectively MTO Agents ); b. All documents, correspondence and/or communications, internal to MTO or passing between MTO and MTO Agents, which has any relation to trespass, nuisance or damage to the Subject Property or any allegations thereof; c. All documents, correspondence and/or communications, internal to MTO or passing between MTO and MTO Agents, which has any relation to the placement, replacement and removal of survey pegs on or abutting the Subject Property or any allegations thereof; d. All documents, correspondence and/or communications, internal or external, relating to changes to the construction of the Works from the initial construction and design contemplated in the Environmental Assessment for the Works to the actual Works as they were constructed, including changes to how MTO Agents would access or stage the Works in and around the Subject Property;
e. All documents, correspondence and/or communications, internal or external, relating to the existence or relocation of the fiber optic telecommunication cables in and around the Subject Property and/or the CPR Right-of-Way: f. All documents, correspondence and/or communications relating to the preservation of snowmobile trails on or within 5 km of the Subject Property, including but not limited to concerns relating to the preservation of access to snowmobile trails, the relocation of snowmobile trails and the potential trespass to the Subject Property by snowmobilers; g. All documents, correspondence, studies, and/or communications, internal or external, relating to the Payne Lake Trail or other trails, roads, colonial roads, accesses or rights of way to and/or within the Subject Property; h. All documents, communications, correspondence, studies, quotations, invoices, costing data and/or engineering information relating to the bridge connecting both sides of the Subject Property over Highway 400, which is known as the Payne Lake Trail Bridge; i. All documents, communications and/or correspondence relating to environmental issues on or immediately adjacent to the Subject Property, raised by or on behalf of Mrs. Wozniak, MTO, the Ministry of the Environment for Ontario or the Federal Department of Fisheries and Oceans; j. All documents, correspondence and/or communications between MTO and the Ombudsman for Ontario in relation to complaints or concerns raised by or on behalf of Mrs. Wozniak and/or relating to the Subject Property;
k. All documents, correspondence and/or communications between MTO and the Auditor General in relation to complaints or concerns raised by or on behalf of Mrs. Wozniak and/or relating to the Subject Property; l. All documents, communications and/or correspondence between MTO and other branches of the Provincial Government, including the offices of local MPPs in relation to complaints or concerns raised by or on behalf of Mrs. Wozniak and/or relating to the Subject Property; m. All aerial photographs, topographical plans and/or surveys in any form, relating to or including the Subject Property from 1997 to the present; n. All documents, communications and/or correspondence relating to hazardous or radioactive materials or waste that was brought within 10 km of the Subject Property as part of the Works, including any information or data of radioactive substances being brought for the Works and corresponding information or data accounting for the removal of radioactive substances; o. All photographs of or including the Subject Property from 1997 to the present; p. All documents, communications and/or correspondence relating to the disposal, deposit or placing of any materials, substances, fill, discharge or waste on or immediately proximate to the Subject Property by MTO, MTO Agents or otherwise; and q. All internal documents, communications, correspondence, memoranda, housebook notes, briefing notes and/or other communications relating to the complaints, concerns or demands made by or on behalf of Mrs. Wozniak or in relation to the Subject Property.