OMB finds against Simcoe County in expropriation appeal

New Tecumseth Free Press Online

Simcoe County’s expropriation of 0.045 acres of property in July 2012 as part of its Cty Rd 50 road widening project could end up costing the upper tier upwards of $200,000 once all the final bills are factored into the costs and damages the OMB awarded to the property owners, Floyd and Maria Pinto in a ruling issued Aug. 17 and posted online yesterday (Aug. 23).

OMB Vice-Chair J.V Zuidema said in his decision, “My starting point in assessing the evidence stems from the approach enunciated in the 1997 seminal Supreme Court of Canada decision, Dell Holdings Limited v. Toronto Area Transit Operating Authority 1997…”

“That decision stood for the proposition that the (Expropriations) Act must be given a broad and liberal interpretation, given that it is remedial legislation with a purpose to adequately compensate those whose lands are taken to serve the public interest. The majority wrote “[t]o 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. ……. I note that the Supreme Court used the term “fully” in describing how a land owner is to be compensated. It does not suggest that every claim should be paid but rather that each claim made properly under a heading stipulated in the legislation and supported by credible evidence, should be fully paid.”

According to the background material, the road reconstruction project involved the addition of an interior lane for slower vehicles immediately in front of the Pinto’s home at 1452 County Road 50 and included lowering the slope of County Road 50 north of the subject property for southbound traffic, while elevating the road grade in front of the subject property by approximately one metre. As result it required expropriation of lands from the Claimants’ neighbours as well. It was noted, the Pinto’s house on the subject property was situated closer to the road than their neighbours’ properties.

“As such, I view the taking of 10 feet of frontage where the Claimants’ home is roughly 100 feet to the road as remarkably different than taking a similar amount of land from the neighbours where their homes were situated anywhere from 250 to 400 feet to the road.”

The initial problem between the Pinto’s and the County was the valuation of the property to be expropriate. The County estimated that the market value for the land expropriated came to $1,363 while the owners were seeking $8,756, a difference of $7,393.

The claim against the County continued to grow during construction as Mr. Pinto testified that the work done on the culverts in front of his home caused flooding which negatively impacted the drainage patterns on his property; damage to the house structure from the vibrations; and the need to replace the septic system caused by a contractor who struck the partition wall on the tank.

On all counts, except for the claim about snow removal, the OMB sided with the Pinto’s.

The County was ordered to pay $73,300.42 for house repairs; $13,938.64 for disturbance damages; and the expropriation valuation in the amount of $8,756. Additionally, the County is to pay “for all costs associated with their claim. Those costs include all legal and consulting costs as permitted by the legislation. The amount shall be payable forthwith along with interest at six per cent as permitted by the Act.”

Mr Pinto, the Ward 1 councillor in Adjala Tosorontio, who is also running for Mayor of the Township, told Free Press Online in an email they were pleased with the outcome.

“”Yes at last some good news,” he wrote. “I and my family are happy the OMB made the right decision taking into consideration all the facts. I can now move forward and fix all the damage done to my home.”