OMB awards costs to Municipality where landowner's claim for expropriation compensation denied

The Ontario Municipal Board ("OMB") has awarded costs to the County of Simcoe in a case where a landowner unsuccessfully claimed compensation for injurious affection.  The OMB's decision is recounted in my blog post from June, 2015 - OMB dismisses claim for injurious affection where no taking - on merits and on basis of limitation period.

The OMB has discretion under Section 32(2) of the Expropriations Act to award costs in favour of the expropriating authority.  In this case, the County of Simcoe had incurred a discounted amount of $165,176.55 consisting of legal and appraisal costs.  The County's claim for costs was made on the grounds that, "if the Claimant had conducted itself in a reasonable and prudent manner, it would never have brought this claim and that the way in which the Claimant governed itself throughout this claim unjustifiably increased costs which otherwise could have been avoided."  The OMB's reasons also disclose that the County had actually made an offer to the landowner of $15,000 to settle after the landowner retained counsel for the matter.

The County claimed "party and party" or "partial indemnity" costs in the amount of $113,922.48.  The OMB decided that the landowner's conduct in refusing the settlement offer was unreasonable and, therefore, that it should be responsible for some of the costs of the County incurred in defending the claim.  The OMB awarded $86,943.20 to the County.

Read the decision at: Willies Car & Van Wash Limited v. Simcoe (County).

Nova Scotia Court of Appeal denies costs to landowner on failed expropriation challenge

A landowner in Nova Scotia challenged the validity of the expropriation of his land.  The challenge was unsuccessful and the landowner was ordered by the NS Supreme Court to pay costs of the challenge to the expropriating authority.  The Court disagreed with the landowner that the costs should be decided under the Expropriation Act as costs related to asserting a claim for compensation (in which case there is no provision for the landowner to pay the expropriating authority costs, and it may be that the landowner would be entitled to costs when compensation is decided).  The landowner appealed the decision on costs to the Nova Scotia Court of Appeal.

The Court of Appeal ruled that there is a distinction between compensation proceedings under expropriation legislation and court proceedings to challenge the validity of the expropriation itself.  Having determined that the Supreme Court judge was not wrong to have applied the normal costs rules under the Civil Procedure Rules, the Court of Appeal upheld the lower court decision. 

Read the decision at: Higgins v. Nova Scotia (Attorney General).