



COURT OF APPEAL FOR ONTARIO

CITATION:
Rabbani v. Niagara
    (Regional Municipality), 2012 ONCA 280

DATE: 20120501

DOCKET: C54376

Blair, Lang and Hoy JJ.A.

BETWEEN

Alexandra Rabbani and Waheed Rabbani

Claimants (Appellants)

and

The Regional Municipality of Niagara

Respondent (Respondent)

Sean L. Gosnell, for the appellants

Paul M. DeMelo, for the respondent

Heard and released orally: April 24, 2012

On appeal from the order of Justice T. Maddalena of the Superior Court of Justice, dated August 29, 2011.

ENDORSEMENT

[1]

The appellants farm property bordering on the Q.E.W. in the Grimsby
    area was expropriated for a service road extension in 2005.  After protracted
    negotiations, the parties resolved appropriate compensation for the property
    and related matters at $1.3 million.  The minutes of settlement between the
    parties provided for assessment of the amount payable to the appellants as
    reimbursement for their reasonable legal, appraisal and other costs actually
    incurred by the owner for the purposes of determining the compensation payable
    pursuant to section 32 of the
Expropriations Act
, R.S.O. 1990, c. E26.

[2]

Assessment Officer Thomas conducted an assessment of the expropriation
    costs over an 11-day period.  In a 1200-page decision in which he reviewed and
    incorporated a great deal of the evidence and jurisprudence, he allowed the
    costs in the amount of $367,514 and issued a Certificate of Assessment in that
    amount.  It should be noted that this involved a considerable reduction from
    the amount initially claimed by the Rabbanis.  The assessment officer then
    issued a Second Certificate fixing the costs of the assessment proceeding in
    the amount of $190,000, again representing a significant reduction in the
    amount claimed.

[3]

The order provided that interest on the Second Certificate would be paid
    from March 3, 2009, the day of the OMB order giving effect to the settlement,
    rather than from April 5, 2011, the day of the second certificate.  The
    Rabbanis concede that interest should only have been awarded from the latter
    date.

[4]

The Region appealed both Certificates to the Superior Court of Justice. 
    Maddalena J. further reduced the amounts of both Certificates by approximately
    17% for the first Certificate and 5% for the Second.  She did so, on the basis
    that in her view, the amounts as assessed were not reasonable, the criterion
    set out in s. 32 of the
Expropriations Act
.

[5]

In our view, the Superior Court Justice erred in the manner in which she
    approached the appeal proceeding before her.  In effect she conducted a
    rehearing and substituted her own view of what was reasonable for that of the
    assessment officer.  This she was not entitled to do.

[6]

The standard of review on an appeal from an assessment officers
    decision is well established.  The order below is discretionary.  The hearing
    is an appeal, not an opportunity for the reviewing court to rehear the
    assessment and come to its own conclusion as to what is reasonable, absent an
    error in law, misapprehension of the evidence, palpable and overriding error on
    a factual matter, or an assessment amount that is so unreasonable as to
    constitute an error in principle.  The assessment officers decision was
    entitled to considerable deference absent such error.  See
Samuel Eng &
    Associates v. Ho
(2009), ONCA 150 (CanLII).

[7]

There is nothing in the reasons of the Superior Court Justice here to
    indicate that she applied her mind to the appropriate standard of review or
    undertook any analysis of the assessment officers reasons to determine whether
    he committed any of the errors mentioned above.  That in itself is enough for
    the appeal to be allowed.  Accordingly, we do not need to resolve the debate
    about whether the Superior Court Justice made factual errors in coming to her
    conclusion.

[8]

The Region does not argue that the assessment officer made any error in
    principle and we can find none on the record.  Nor can we say, given the
    assessment officers lengthy analysis of the evidence and appropriate
    jurisprudence, that the amounts he allowed for either Certificate were
    unreasonable.

[9]

The appeal is therefore allowed, the order of the Superior Court Justice
    set aside, and the amounts ordered by the assessment officer reinstated, except
    for the issue of interest payable on the Second Certificate amount.  That Certificate
    is amended to provide that interest shall be payable from April 5, 2011.

[10]

Mr.
    Gosnell seeks costs on a substantial indemnity basis.  Mr. DeMelo acknowledges
    that if he had been successful, he would have sought costs on the same scale,
    although he might have expected the court to award them on a partial indemnity
    basis.  In our view, the appellants are entitled to reasonable costs on a
    substantial indemnity basis in order to give effect to the objectives in the
Expropriations
    Act
.

[11]

Accordingly,
    we fix costs of the proceeding below at $15,000 all inclusive and the costs of
    this appeal at $15,000, all inclusive, payable by the respondent to the
    appellants.

R.A.
    Blair J.A.

S.E.
    Lang J.A.

Alexandra
    Hoy J.A.


