More BLOG Potpourri
But VACATION FOREIGN?
We learned from Councillor Halberstadt's BLOG that
- "I attended a Licensing Commission meeting with the two Councillors this morning, and at the end of it, Caroline informed Ron and I that she is taking off with her family on a mini vacation to a Michigan water park. "
THE DEMOLITION DIFFERENCE
Here is a request for demolition of a fire damaged home in an area covered by a Demolition By-law. Not in Sandwich though. I trust that Council will be consistent and reject the request until such time as the owner puts forward:
- "definitive timelines, definitive implementation plan and definitive schedule for implementation, definitive funding for their plan to be enacted in perpetuity.”
CROSS EXAMINING THE PREMIER
Wow, something is really bothering Patrick Brode of the City's Legal Department. He needs to tell us what it is. When he lost at the Divisional Court he was quoted in the Star as saying:
- "We are disappointed by it," said lawyer Pat Brode, of the city's legal department. "The city felt the board made fairly significant errors."
Now he lost again at the Court of Appeal when that Court refused to give leave to appeal without reasons. He was most unhappy it seems given this comment in the Star
- "Brode insisted Monday the OMB and the courts were wrong in this case and went so far as to liken their decisions to the verdict of the jury that acquitted O.J. Simpson of two counts of homicide."
I am shocked. That kind of language seems to me to be rather unfortunate. I did notice that there was no quote directly from him but just the Reporter's interpretation of what he said so perhaps he was misquoted.
OJ Simpson compared with an expropriation? What happened that should have caused him to be so upset? Is there something going on that we do not know about? In these circumstances, I believe that Mr. Brode needs to tell us more or demand that the Star correct its story.
I also found this remark interesting as a basis for appeal:
- "The city would have owed Meconi the $143,000 plus interest and legal costs last year had it done nothing, so it was worth spending a little more in the bid to overturn the OMB ruling, said Brode.
"It was well worthwhile for city council to decide that we should contest this before the courts," said Brode.
"We weren't successful, but I would suggest to you it was worth a try."
Oh well. Win some, lose some. It was only "a little more" to go to the Divisional Court and then the Court of Appeal.
Here is the section of the OMB ruling that caused the difficulty I believe for you to consider whether it was "worth a try:"
"The final issue to be determined in this matter is whether the value of the Tenant’s leasehold interest in the Expropriated Land has the effect of reducing compensation otherwise payable by the City to the Claimant. Mr. Brode argued that the rent paid under the Head Lease is less than fair market rent to the extent of $104,000 and therefore should reduce compensation payable on a dollar for dollar basis. This figure of $104,000 was calculated by Mr. Bower and his arithmetic was unchallenged. Mr. Rohaly, on the other hand, suggested that the Divisional Court decision of Re: Minister of Transportation and Eat ‘N Putt Ltd. (1985) 50 O.R. (2d) 503 applied to this proceeding and no reduction should be applied to the $853,000 figure which I have thus far determined to be payable...
There is no doubt that the concept of profit rent is well grounded. However, in my view, this concept and the McPhedran case must be read in the context of and subject to the Divisional Court decision alluded to by Mr. Rohaly. In that case, the Divisional Court was asked to rule on whether the Ontario Municipal Board erred in law by holding three separate hearings by three separate panels to determine the value of the interest of an owner, tenant and subtenant in lands expropriated by the Ministry of Transportation and Communications. The Court concluded that the Board did err in law and at p. 505, Eberle J. enunciated very clearly the manner in which separate interests should be ascertained:
- In our view, the relevant principle of law in a case of this kind is that the claims ought prima facie to be tried together, or at least on some basis, which entitles each separate interest to be advanced fairly and fully and enables as well the parties involved to meet any evidence inimical to their interest.
I have been asked by Mr. Brode to reduce the amount of compensation payable to the Claimant by $104,000 because this sum represents the profit rent which Mr. Bower has attributed to the Tenant under the Head Lease. However, I do not know what amount was paid by the City to the Tenant or, for that matter, paid by the City to the Subtenant. Moreover, Mr. Rohaly, notwithstanding his request to participate in tenant/City negotiations, was not invited to do so by the City. In light of the foregoing, can it be said that the Claimant’s interest has been advanced fully and fairly and in a way which enables the Claimant to meet evidence inimical to its interest? I think not. In my view, the interest of the Tenant and, the interest of the Subtenant, are interconnected with the interest of the Claimant and therefore those interests should have, as stipulated by Eberle J., been determined in some way which allowed each party involved to effectively advance its position. In addition, in view of the absence of information and evidence concerning amounts paid by the City to the Tenant and Subtenant for their interests in the Expropriated Land, it is entirely possible that the City could, if I accepted Mr. Brode’s submission, pay in the aggregate, less than the market value of the Expropriated Land. This is not, in my view, a result which is contemplated or supported by the Act. Under the circumstances therefore, it would not be appropriate to reduce compensation by any profit rent enjoyed by the Tenant."