Executive Summary: Key Legal and Evidentiary Issues

• Compensation owed to 2090396 Ontario Ltd. following the 2015 expropriation of its vacant lot in Vaughan was the central dispute before the Ontario Land Tribunal and on appeal.
• At issue was whether the Tribunal correctly applied s. 14(4)(b) of the Expropriations Act to "screen out" value increases linked to the vivaNEXT rapid transit scheme.
• Land dedication requirements under ss. 41(8) and 41(9) of the Planning Act were contested, with the Region arguing probable dedications of up to 30% would have rendered the proposed development unfeasible.
• Determining the highest and best use of the property required the four-part test — legal permissibility, physical possibility, financial feasibility, and maximal profitability — to be sequentially satisfied.
• Expert evidence from 11 witnesses across planning, engineering, and appraisal disciplines was central to the Tribunal's findings, all of which were entitled to deference on appeal.
• Questions of fact and mixed fact and law were reviewable only for palpable and overriding error, a standard the appellant failed to meet on all three grounds of appeal.

Facts of the case

In April 2015, the Regional Municipality of York ("the Region") expropriated a vacant lot at 1500 Centre Street, located at the northeast corner of Centre Street and Dufferin Street in the City of Vaughan, owned by 2090396 Ontario Limited ("209"). The stated purpose of the expropriation was the implementation of road and intersection improvements along Highway 7, Centre Street, and Bathurst Street, including the vivaNEXT bus rapid transit system, which was to have a dedicated right of way in the centre of the travelled portion of the street. Pursuant to the Expropriations Act, R.S.O. 1990, c. E.26, 209 brought a compensation claim before the Ontario Land Tribunal. The Tribunal conducted a 10-day hearing between January 13 and 24, 2025, hearing testimony from 11 witnesses — almost all qualified as experts — across fields including land use planning, architecture and urban design, transportation planning and engineering, real estate analysis and development feasibility, and real estate appraisal. The parties filed over 4,500 pages of documentary evidence.

209 claimed the highest and best use of the property before expropriation would have been a 12-storey mixed-use residential and commercial development described as "Development Concept 1." It sought $857,493 for the fee simple interest (at $182 per square foot), $1,502,067 in damages for injurious affection to the remaining portion of the property, and $45,095 for the temporary easement. The Region countered that the highest and best use was low-rise commercial development, and that 209 was entitled only to $376,920 for the fee simple interest (at $80 per square foot), $12,348 for the temporary easement, and no damages for injurious affection.

Policy terms and statutory provisions at issue

The primary statutory provision in dispute was s. 14(4)(b) of the Expropriations Act, which directs that in determining market value, no account shall be taken of "any increase or decrease in the value of the land resulting from the development or the imminence of the development in respect of which the expropriation is made or from any expropriation or imminent prospect of expropriation." This process is commonly referred to as "screening out" the expropriation scheme, and is a codification of the common law Pointe Gourde principle, as affirmed by the Supreme Court in St. John's (City) v. Lynch, 2024 SCC 18. Additionally, ss. 41(8) and 41(9) of the Planning Act, R.S.O. 1990, c. P.13 were at issue, as they permit a municipality to require, as a condition of certain development approvals, that a landowner convey portions of land to the municipality at no cost — a process known as "land dedication." The Region argued that the planning documents relied upon by 209's expert, Antonio Volpentesta, including York Region's 2010 Official Plan, the City of Vaughan's 2010 Official Plan, the 2013 Thornhill Centre Street Land Use Plan, Vaughan's 2013 Centre Street Urban Design Guidelines, and Vaughan's 2013 Centre Street Streetscape Plan, were products of the expropriation scheme and should have been screened out.

Reasoning and analysis

On April 17, 2025, the Tribunal released a 53-page decision concluding that Development Concept 1 satisfied all four parts of the highest and best use test — legally permissible, physically possible, financially feasible, and maximally profitable. On the screening-out issue, the Tribunal found there was no clearly established connection or direct relationship between the impugned policy documents and the expropriation scheme, noting that bus rapid transit already existed on Centre Street on the valuation date and that the planning documents' transit-supportive vision could have been implemented without the expropriation of the subject property. The Tribunal further found that even if those documents were screened out, the expert's conclusions were independently supported by the 1994 York Region Official Plan and the 2006 Golden Horseshoe Growth Plan.

On land dedication, the Tribunal rejected the Region's position that a dedication of up to 30% of the property's area was probable. It found that the Region's witness on this point, Calvin Mollett, was not qualified to give expert evidence and his evidence was rejected on several points. Transportation engineering expert Joshua de Boer testified that the proposed development would result in only a 1% increase in traffic, suggesting no road widening would be required. The Tribunal also found that a 30% land dedication would likely have been challenged before the Ontario Municipal Board and that such a challenge would likely have succeeded. On the issue of lesser dedications raised by the Region only in its final submissions, the Tribunal declined to consider it, finding that the Region had treated the matter as "all or nothing" throughout the proceeding and that no probative evidence had been led on the impact of a lesser dedication.

On appeal, the Divisional Court examined each of the Region's three grounds. It held that the Tribunal's use of the phrase "clearly established connection" in its screening-out analysis was consistent with the principles in Lynch and disclosed no legal error. The Court rejected the Region's argument that being "influenced by" the scheme was sufficient to trigger s. 14(4)(b), finding that Lynch requires an enactment to have been made "with a view to" the expropriation — a higher standard. The Court also found that the Tribunal's references to whether the documents "neither contemplated nor required the taking" were drawn directly from Lynch and reflected the Ontario statute's causation-based language, not an impermissible focus on causation. On land dedication, the Court agreed the Tribunal had framed the issue imperfectly by focusing on likelihood rather than risk, but found no reversible error because the likelihood analysis was logically relevant to what a reasonable buyer would pay and because the Tribunal had clearly understood the correct issue. The remaining grounds concerning procedural fairness, other land dedications, and lesser dedications were each dismissed for insufficient demonstration of palpable and overriding error.

Ruling and overall outcome

The Divisional Court dismissed the Region's appeal in its entirety. The Tribunal's compensation award in favour of 209 — $857,493 for the fee simple interest, $1,502,067 for injurious affection, and $12,348 for the temporary easement, totalling approximately $2,400,000 — was upheld. On costs of the appeal, the Court fixed an additional $160,000, all inclusive, in favour of 209, bringing the total amount awarded to approximately $2,560,000.