



COURT OF APPEAL FOR ONTARIO

CITATION: Pointe East Windsor Limited v. Windsor (City), 2014
    ONCA 467

DATE: 20140616

DOCKET: C58185

MacPherson, Simmons and Gillese JJ.A.

BETWEEN

Pointe East Windsor
    Limited

Applicant (Appellant)

and

Corporation of the City of Windsor

Respondent (Respondent)

Raymond G. Coulautti, for the appellant

Mark P. Nazarewich, for the respondent

Heard: June 10, 2014

On appeal from the judgment of Justice
Terrence
    L. J.
Patterson of the Superior Court of Justice, dated December 18,
    2013.

By the Court:

BACKGROUND

[1]

In late 2010, the City of Windsor (the City) negotiated with a company
    that manufactures wind towers to set up shop in Windsor.  As part of its
    agreement to locate in Windsor, the company required the City to arrange for a
    rail line to be provided to its facility.  A suitable location was found, with
    a nearby main railway line that could be extended to the proposed facility by a
    rail spur.

[2]

Pointe East Windsor Limited (the appellant) owned undeveloped land in
    the vicinity of the proposed facility.  A part of its land was suitable for the
    rail spur.

[3]

The City negotiated with the appellant to purchase a part of its lands. 
    Through two agreements of purchase and sale, completed in December 2010, the
    appellant sold 60 acres of land to the City.  The purchase agreements between
    the appellant and the City obligated the City to extend a road to the
    appellants remaining lands, when those lands were ready to be developed (the
    road extension).

[4]

The appellants remaining lands consisted of approximately 160 acres of
    vacant land, located to the east of the land that the City had purchased.  Twin
    Oaks Drive is a road that services an industrial area located to the west of
    the appellants remaining lands.  The agreements specify that Twin Oaks Road is
    to be extended in a straight line from its terminus, in an easterly direction,
    to the boundary of the appellants remaining lands.

[5]

The City then sold the property to the wind turbine company.  Under the
    terms of the agreement, the City became obligated to provide rail access to the
    property by means of a rail spur.

[6]

Before the road extension could be constructed over a rail line,
    legislation required that an environmental assessment be undertaken.  The
    environmental assessment did not recommend that the road extension follow the route
    specified in the agreements between the appellant and the City because it would
    create a substandard road/rail at-grade crossing with poor sightlines.  The environmental
    report recommended an alternative configuration for the road extension. 
    Instead of being constructed directly east, as specified in the agreements
    between the City and the appellant, the road extension would be built
    indirectly to the appellants remaining lands.

[7]

Absent significant expense, the rail spur cannot be built in any other
    configuration due to the standards that must be applied, given the land
    available and the size of the loads expected to travel along the line.

[8]

It was only after the environmental assessment was performed that the
    City became aware that the road extension to the appellants lands could not be
    constructed in accordance with the agreed-upon route.

[9]

The appellant brought an application for an order compelling the City to
    comply with its obligation to construct the road extension in accordance with
    the agreed-upon route.

[10]

The
    City responded by acknowledging that as a result of building the rail spur, it
    would be unable to construct the road extension according to the agreed-upon
    route.  It also acknowledged that this was a breach of a term of its agreements
    with the appellant and that it would pay such damages as were appropriate.

[11]

The
    appellants position on the application was that the City should be ordered to:
    (1) not build the rail spur; and (2) extend the road according to the agreed-upon
    route. The appellant argued that not constructing the road extension according
    to the agreed-upon route would cause it substantial prejudice and irreparable
    harm.

[12]

Specifically,
    the appellant contended that failure to construct the road extension according
    to the agreed-upon route would have an adverse effect on its ability to attract
    a big box store to locate on its remaining lands and that its remaining lands
    would be devalued.  It led evidence from an expert with planning, but not
    marketing, credentials indicating that the alternative road extension route would
    adversely affect the value and marketability of the appellants lands.

[13]

The
    City provided evidence from an expert with expertise in both planning and
    retail marketing and development.  This expert opined that the proposed
    alternative route would cause little or no adverse effects on the development
    of the appellants remaining lands.  In his view, it would not hinder the
    appellants ability to attract the type of development it wished.  Among other
    things, the expert noted that the additional trip duration caused by the
    re-alignment would be very short and the vast majority of visitors to the site
    would use other roads that give access to the appellants remaining lands.

[14]

The
    application judge found that the City had acted in good faith when it entered
    into the agreements with the appellant and the wind turbine company.  He
    further found that the evidence did not establish that the appellant would
    suffer substantial prejudice or irreparable harm if the road extension were
    built indirectly so as to accommodate the rail spur.  He also found that
    damages would be an adequate remedy for the Citys breach of contract.

THE ISSUES

[15]

On
    appeal, the appellant submits that:

(i)

the application judge erred in not ordering a permanent injunction
    preventing the City from constructing the rail spur;

(ii)

alternatively, the application judge erred in dismissing the application
    in its entirety, rather than granting declarations that the City was in breach
    of its agreements and ordering a trial of an issue to determine damages.

ANALYSIS

[16]

We
    accept neither submission.

[17]

We
    see no error in the application judge declining to exercise his discretion to
    order a permanent injunction preventing the City from constructing the rail
    spur.  Damages are typically ordered for breach of a contract and it is only
    where damages are inadequate that equitable relief may be available:
UBS
    Securities Canada Inc. v. Sands Brothers Canada Ltd.
,
[2009] O.J.
    No. 1606 (C.A.), at para. 96.  In this case, the application judge found that
    damages were an adequate remedy so there could have been no error in his
    declining to order equitable relief.

[18]

The
    appellants alternative argument must similarly fail.  In the application, the
    appellant sought a permanent injunction.  It did not seek damages in the
    alternative nor did it request the application judge to award or assess
    damages.

[19]

The
    City maintains that because of the appellants tactical decision to not claim
    damages, the evidentiary record was insufficient to assess damages and the
    application judge committed no error in declining to address the issue.  We
    agree.  The application judge determined that damages are an adequate remedy
    for the breach of contract.  If the appellant wishes to seek damages, it must
    do so in a properly pleaded fashion.  We would add a comment in this regard. 
    The appellant expressed concern that if it had to bring a proceeding to have
    damages quantified, there was the possibility of inconsistent verdicts.  In
    light of the Citys admission that it would be in breach of the agreements
    because the road extension would not be constructed according to the
    agreed-upon route and the recording of this admission in the application, we do
    not see the possibility of an inconsistent position being taken on liability.

[20]

As
    for the alleged error in failing to order the trial of an issue to quantify
    damages, the application judge can scarcely be faulted for failing to order
    relief that the appellant did not seek.

DISPOSITION

[21]

Accordingly,
    the appeal is dismissed with costs to the City fixed at $15,000, all inclusive.

Released: June 16, 2014 (J.C.M.)

J.C.
    MacPherson J.A.

Janet Simmons
    J.A.

E.E. Gillese
    J.A.


