White Star's current Legal Claim for Compensation before LPAT (formerly the OMB) for Council Interference with property and business rights where no land is taken in its failed Stadium Expropriation Efforts resulting in - Disturbance Damages to the property and business owner.
LPAT File No. LC200004
IN THE MATTER OF the Expropriations Act, R.S.O. 1990, c.E.26
AND IN THE MATTER OF AN ARBITRATION
BETWEEN:
WHITE STAR GROUP OF COMPANIES
Claimant
and
CITY OF HAMILTON
Respondent
RESPONSE TO THE CITY OF HAMILTON’S REPLY TO THE
NOTICE OF ARBITRATION AND STATEMENT OF CLAIM
The City in their current response to the White Star claim, maintain that their
refusal to participate in the process in 2017, did not result in the City waiving their Board of Negotiation process rights. In the spirit of entering an initial Board of Negotiation proceeding and being inclusive of the interests of the North End Community, White Star has prepared the following Reply. White Star’s case preparation was with respect to substance and as the City of Hamilton has chosen to take on procedural arguments in its reply, the Claimant should be entitled to properly argue any post hearing and post Board of Negotiation Motion brought by the City in this regard.
OUR POSITION AS PER THE DELL CASE
The City of Mississauga refused to consider the Claimant’s planning application
on the basis that any decision thereon would be premature given the uncertain
status of the transit station and associated expropriation. The Claimant was in
the business of land development, and it was this delay in bringing its property to the development stage which formed the basis of its claim for special damages for business loss.
In the same situation the City of Hamilton refused to consider our application until the status of the stadium and associated expropriation was determined. This is outlined in the City April 23, 2009 Response to the White Star Notice of Motion for Party Status.
The sole ground upon which there was a dispute between the parties was the claim for business loss which the Claimant alleged had been caused by the delay in determining which lands would be required for the transit station (in our case the stadium). The Claimant characterized this loss as an injurious affection of its unexpropriated property, and in the alternative as a claim for disturbance damages.
In its decision, reported at 43 L.C.R. 1381, the Ontario Municipal Board found
that the Claimant had suffered damages which flowed from an act of the
Authority which was in contemplation of the expropriation and an integral
prerequisite thereof.
The Claimant maintains that Section 22 is in fact argued in the materials, as is
procedural fairness, and through oversight not included in the specific Sections
of the Act referred to. The Claimant relies heavily on the Dell case and the
Antrim Truck case, where another section 22 argument is presented in its
materials.
Injurious Affection-Disturbance damages – No Land Taken
The moment the City of Hamilton put White Star’s active rezoning application
on hold for the purpose of pursuing its stadium plan and when it insisted on the
decommissioning of White Star’s salvage yard operations, it created a significant private nuisance to White Star which resulted in significant disturbance damages over the next 10 years and thereafter.
In the Antrim case the Supreme Court reviewed the test for private nuisance,
which underlies claims were there injurious affection with no taking. There is a
two part test in the law of private nuisance, namely:
(a) there must be “substantial interference”; and
(b) that interference must be unreasonable.
In assessing the threshold for nuisance, the requirement of substantial harm
“means that compensation will not be awarded for trivial annoyances.” This first
step is a relatively low threshold.
There are several factors that may be considered in determining whether the
interference was unreasonable, namely:
(a) The severity of interference;
(b) The character of the neighbourhood;
(c) The utility of the defendant’s conduct;
(d) The sensitivity of the plaintiff; and
(e) The duration of the interference.
These factors are not a checklist, rather an adjudicator should consider the
substance of the claim during the balancing exercise of the factors. 6 Courts
should not simply consider whether the public benefit outweighed the private
interference, but whether that interference, in light of all of the circumstances,
was more than the Claimant could reasonably be expected to bear without
compensation.
The result was a clarification by the Supreme Court as to the breadth of claims
for injurious affection where no land has been taken.
The White Star claim has the added element of the invasive closure and disturbance of the White Star auto salvage yard and the insistence by the City to compel White Star to unnecessarily decommission the salvage yard as per the development agreement even though the City was not complying with its own obligations under the agreement as the City was engaged in the long drawn out process of determining a location for its stadium effort. The City ought to have in good faith encouraged White Star to operate the Salvage yard operations and prudently minimize their exposure to disturbance damages.
A further element of the case, is the suppressive and otherwise egregious conduct and abuse of power by the City in failing to exercise its powers in a fair and responsible manner, in failing to deal with compensation resolution and in failing to provide the agreed access to remediation funding to White Star. White Star’s position also speaks to the legitimacy of the expropriation and pre-expropriation process and the abuse of that process as well as the restrictions, interference, limitations and negative impact on White Star’s property rights by the City. Notwithstanding the actual act of expropriation, there are numerous principals, especially in the pre- expropriation process, that should be construed in favour of the Claimant. These include the right of the owners to receive full and fair compensation, for the owners to be made economically whole again, to protect private property rights through transparency, to apply fairness and equity in the process, political accountability and protections against high handed dealing and the abuse of the expropriations process. The City failed to protect these rights through a flawed planning process that included no transparency, no proactive planning process, no co-operation, no reasonable conduct and no good faith negotiation.
The Claimant reasonably believes this matter to be the subject of continuous
abeyance until the project is complete to which the City agreed, as documented, and any limitation periods have been tolled. The project is not complete and the
City is, and has been aware of and had agreed that the White Star development
application process be held in abeyance until the project was complete.
White Star has put a lot of capital and effort in the pre-expropriation process and needs to be made whole again. White Star started with minimal debt and an
opportunity to operate or lease the licenced auto salvage yard. It now has a
significant large debt, no salvage yard business, and a site plan and soil remediation conditions that are not completed due to City delay. White Star is
facing the prospect of losing its property. It needs to find itself back at the point
before all the delays caused by the City, where it only owed approximately
$30,000.
White Star has come to the table seeking an equitable remedy in the protection
of its land and business owner’s rights. Conversely, the City has come to the
table with unclean hands.
HISTORICAL NARRATIVE
-City Council in 1989 approved a resolution to support the development of the
White Star industrial lands site into a residential development conditional upon
the decommissioning of the Salvage Yard, the remediation of the soil to MOE
standards and attaining an easement agreement with CN Railways.
-After 3 years of planning efforts with the City, in 2000, in keeping with the City
resolution, White Star made a rezoning and Official Plan amendment application and initiated the decommissioning of the Salvage Yard operations.
-In 2000, the City, without notice to White Star, in conflict with the City and White Star residential plan, initiated its Commonwealth Games stadium plan which effort ended by 2004 when the City lost its Bid for the Games.
-White Star continued its decommissioning process during that time.
-The City in 2000, having placed the White Star Rezoning Application Process on Hold as alleged and confirmed in writing by the City, was obliged to inform White Star of its reconciliation decision with respect to the two conflicting plans that prompted the hold, as represented by the City, and much later determined to be a conflict between a residential plan versus a stadium plan option. The City decided to pursue its stadium plan.
-The City as per our request confirmed on Jan. 26, 2001 that it will continue to
hold the White Star application ZAC-00-18 in abeyance until the project is
complete. The application has not been completed to date due to the City delays. The abeyance was intended to preserve White Star’s rights, in particular the time limitations rights and the rights to the 100% level of development fees, as existed in 2000, going forward.
-In 2004, the City entered into a Council approved development agreement with White Star for the continuance of the rezoning process, decommissioning of the Salvage yard and confirmed its intention to provide $1.5 million for the Soil Remediation once the rezoning was approved to residential. The agreement
was confirmed in a City staff report 05-012 on Sept 15, 2005.
-In 2006 the City, as an invasive and controlling act, confirmed that White Star
removed its auto inventory, gave notice to White Star that it expected White Star to continue to honour the development agreement, and not replenish its auto salvage inventory and not resume its Salvage yard operations. White Star
complied. The City did not advance the OMB rezoning process for another 6
years further compounding the White Star sought after disturbance damages.
-The City deceived White Star into believing its and the City’s interests were
aligned and that it would bear the cost of advancing the anticipated CN Appeal of its Setting Sail Plan residential plan in a timely manner. Subsequent to the
Appeal by CN Rail, the City did not advance the White Star rezoning application matter to the OMB but advanced its own stadium interests at the expense of White Star. The City totally disregarded White Star’s application including at times losing the entirety of its White Star application files.
-It took 9 long years for the City to finally divulge its 2003 Commonwealth Games stadium effort and the then 2009 Pan Am Games stadium plans effort. It did so on April 23, 2009 in its Response to the White Star Party Status Motion and in the December 4, 2009 email between Art Zuidema, City lawyer, and Anthony Powell, the White Star lawyer where a brief history of the selection of the West Harbour site was provided for the OMB hearing. The City was requesting the OMB to grant it an Order in support of a further delay until the stadium location site was determined and to stop White Star from advancing its interests. The City also passed a Council Resolution that confirmed City support for White Star’s party status at the OMB, conditional on White Star not fast tracking its rezoning application until a final decision on the location of the Games was determined.
The City was finally openly confirming its continuing disturbance of the White
Star development plans, while also disturbing its business operations on the
lands without any guarantee that it would need the White Star lands for the
stadium.
- It became clear at the OMB hearing that the City had supressed its stadium
plans decision during its reconciliation process since 2000, that the City had not
advanced White Star’s rezoning application to the OMB, and that the City only
divulged it’s conflicting stadium plan once White Star insisted on attaining party
status at the OMB, with the intent to fast track its residential rezoning application. White Star’s interests and those of the City were not aligned and the City had misled White Star since 2000, and deliberately continued to hold the White Star application in abeyance, while unnecessarily disturbing its salvage yard operations. The City insisted that White Star decommission its salvage yard, yet it revealed in its request for an order before the OMB that it could not guarantee if and when the White Star lands would be determined to be needed for a stadium.
- The City ought to have given White Star notice of its stadium intentions back in 2000, ought to have entered into an option to acquire the lands and business and ought not to have insisted on decommissioning and curtailing the White Star salvage yard operations until a decision on the location of the stadium was
determined. White Star could have been putting its efforts in updating the salvage yard, earning revenue from the operation of the salvage yard and
minimizing its disturbance damages due to the City imposed delay of its planning application.
-In 2010, the City initiated its formal expropriation efforts and acquired a number of businesses and 15 acres of land adjacent to the White Star property and engaged White Star in the Environmental testing of its lands and
acquisition/expropriation negotiations. Unexpectedly, as the City failed to obtain a lease agreement from the Hamilton Tiger Cats for the intended Barton Tiffany Block stadium location at the outset of their planning process in 2000, the stadium plan failed.
-The $1.5 million dollar in initial funding for the environmental remediation
referenced in City Report 05-012 and the 100% development fee credits, were
the two key incentives, together valued at $5 million, upon which White Star
based its initial decision to decommission its salvage yard operation, also valued
at approximately $5 million. The remediation costs for the upper and lower lands has in the ensuing years risen to almost $5 million, well in excess of the $1.5 million agreed to in 2005. The City’s denial of environmental funding has also had a negative impact on all the White Star properties and projects, including 205 Canon St. East and 12 Walnut St. South, which were both included in City Report 05-012 and which incentives White Star depended on to complete the projects.
- In 2006, only had mortgaging in the approximate amount of $30,000, and by
2007, it was compelled to arrange for a $513,000 mortgage in order to meet its
compounded tax and overhead operating costs occasioned by the City’s delay.
The overhead operating costs and compounded interest have resulted in
approximately $10 million in debt currently negatively impacting White Star’s
equity in the project.
- In 2010, White Star requested City Council to compensate it for the disturbance damages that resulted from the City 10 year delay of the White Star residential development application process.
- City Council passed a resolution and agreed to review a compensation
resolution for White Star, and subsequently placed the review on hold and kept it in camera with no decision provided by Council to White Star to date.
- It took the City a further 5 years, until 2015 to complete the OMB conditional
residential re zoning process and the Urban design Study. The Environmental
remediation of the soil was a significant condition and the agreed upon $1.5
million in financing, as confirmed in City Report 05-012, was essential.
- The City over the next two years, refused to approve the White Star
Remediation financing application claiming that due to an impaired relationship with White Star, City Policy prevented the approval of the application and access to funding. The impaired relationship was White Star seeking compensation and the City exercising its disproportionate powers in an excessive and inappropriate manner to delay the completion of the project for 15 years.
- White Star’s Site Plan application was conditionally approved by the City in
2017. The key condition was the remediation of the Soil to the satisfaction of the
Director of Planning and obtaining from the MOE approval of a satisfactory
Record of Site Condition.
- In 2017, White Star applied to the Board of Negotiation, some 7 years later in a
continuance of the earlier OMB process, to resolve outstanding compensation
issues between it and the City. The City, in item 4 of its Response to Notice of
Motion on April 28, 2009, outlined in the request for an Order from the OMB in 2009, in support of a further delay of its stadium effort plans, took the position that:
“The Board’s Rules and Procedures encourage settlements and resolution
without the need for hearings. Avoiding a potentially long and protracted hearing is certainly in the public interest as public resources and public funds would be saved.”
- White Star supports with the above stated position, yet the City refused to
participate in the 2017 White Star Board of Negotiations application process, not
withstanding their unique interpretation that somehow the Board had decided not to accept the matter, on any other basis that the City refused to participate.
This is born out by the entirety of the correspondence with the OMB.
- The City took a total of 17 years to arrive at that juncture.
- Further efforts were made to access information that the City was obliged to
reveal but continued to suppress and further efforts were also made to resolve
the matter and the City was unresponsive. The matter is now again before the
Tribunal in what White Star sees as a continuance of the earlier OMB process
having believed the City would eventually deal with the compensation matter but did not.
The City has been continuing its land assembly and acquisition efforts with the
Acquisition of 2 Tiffany St. on Jan. 27, 2020 for a municipal purpose that is not
fully known or transparent.
CONCLUSION
In view of the delay caused by the City, the City’s limitations claim is simply
disingenuous and in sharp contrast with the available evidence. White Star did
argue injurious affection and disturbance damages as in the Dell case. The City
was responsible for the continuing delay, not White Star. The City waived its
limitation argument as it agreed in writing in 2001 to continue to hold our
application in abeyance until the project was complete. As compensation
discussions were regarded as a continual process until November 2019 by White
Star, the particulars of the claim for injurious affection have only now been
realized, compensation discussions not having been dealt with in good faith by
the City, and well within any limitation period. Furthermore, White Star believes that limitation periods are tolled when the claimant reasonably believes that another tribunal or venue may have the exclusive jurisdiction to provide part ofthe remedy the clai mant is seeking. Har Jo Management Sevices v. York
(Regional Municipality) 2018 ONCA 469. The determination to bring this matter
to the Tribunal was determined by White Star in November 2019 and actualized
Jan. 31, 2020.
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