Gillespie v. Ontario (Transportation)

Gillespie v. Ontario (Transportation)

Section 14(4)(b) excludes the benefit of the road and watermain from the before valuation and s.23 precludes credit for that benefit absent injurious affection; therefore the betterment ($406,873) must be deducted from the after value but the full development/delay cost ($631,744) cannot also be deducted as that would double-count the same benefit; only the incremental costs directly attributable to extending services to the retained parcel ($145,121) are deductible, producing a compensation award of $623,121.

Citation
2007 ONCA 441
Parties
Claimant (respondent in Appeal): Phyllis L. Gillespie by her Litigation Guardian Diane Nelson; Respondent (appellant in Appeal): Minister of Transportation
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
15 June 2007
Procedural Posture
Civil Expropriation Appeal / Appeal to Court of Appeal From Divisional Court Order
Outcome
Appeal allowed; compensation reduced to $623,121 and costs awarded to appellant
Legal Topics
Compensation, Market Value, Betterment, Before and After Valuation, Section 14(4)(b) Expropriation Act, Section 23 Expropriation Act, Double Counting, Standard of Review
Source Language
English
Property Law Expropriation Administrative Law Civil Procedure Compensation Market Value Betterment Before and After Valuation +4 more

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Parties

Phyllis L. Gillespie by her Litigation Guardian Diane Nelson

Claimant (respondent in Appeal)

Minister of Transportation

Respondent (appellant in Appeal)

Procedural Posture

Civil Expropriation Appeal / Appeal to Court of Appeal From Divisional Court Order

Legal Issues

  1. 1 Whether development and delay costs should be deducted in calculating the after value of remaining lands
  2. 2 Whether the benefit from post-expropriation improvements is excluded by s.14(4)(b) and cannot be credited under s.23
  3. 3 Whether the Divisional Court and OMB double-counted development costs

Ratio Decidendi

Section 14(4)(b) excludes the benefit of the road and watermain from the before valuation and s.23 precludes credit for that benefit absent injurious affection; therefore the betterment ($406,873) must be deducted from the after value but the full development/delay cost ($631,744) cannot also be deducted as that would double-count the same benefit; only the incremental costs directly attributable to extending services to the retained parcel ($145,121) are deductible, producing a compensation award of $623,121.

Court Disposition

Appeal allowed; compensation reduced to $623,121 and costs awarded to appellant

Orders

  • Reduce compensation payable to the respondent to $623,121.
  • Appellant entitled to costs before the Divisional Court and before this Court, including the application for leave to appeal, fixed at $40,000 inclusive of disbursements and GST.