Windsor

Ontario Superior Court upholds decision over expropriated riverfront land

The court upheld an Ontario Municipal Board decision that made Shergar Developments pay for the City of Windsor's legal costs.

Windsor expropriated the former rail lands from London developer in 1998

The lands expropriated by the city run from approximately Caron Avenue to Crawford Avenue, on the north side of Riverside Drive. (Jonathan Pinto/CBC)

The Ontario Superior Court has upheld a decision concerning a long-running legal battle between a London developer and the City of Windsor over the land expropriation to complete a series of parks along Windsor's waterfront. 

In 1995, Shergar Development Inc. purchased land from CP Rail for $750,000. It consisted of a 5.7-hectare parcel along the Detroit River from approximately Caron Avenue to Crawford Avenue, and a 2.4-hectare parcel nearby that consisted of a former railway corridor.

The parcels are located to the north and to the east, respectively, of the CBC Windsor studios on Riverside Drive and Crawford Avenue.

The City of Windsor expropriated the riverfront parcel in 1998, in an effort to fulfil a long-running desire for a riverfront park, offering the developer $500,000.

The Ontario Superior Court has upheld a decision concerning a long-running legal battle between a London developer and the City of Windsor over the latter's expropriation of riverfront land that is now parkland. We spoke to Patrick Brode, senior legal counsel for the City of Windsor. 5:34

In the years since, the city has integrated the parcel into the city park system, with paved trails, natural features and a playground.

"This really made the entire riverfront parkland we have now, possible," explained city lawyer Patrick Brode. "It was the last link to get."

Legal challenges

Shergar challenged the legality of the land seizure — unsuccessfully — through a series of cases that lasted until 2007.

Then in 2013, the company contested the city's valuation of the land it offered in the expropriation process. In 2015, the city offered $1,208,155.98 to Shergar to settle the matter before it would be heard by the now-defunct Ontario Municipal Board (OMB).

The company declined the offer, believing the value of the land was somewhere in the range of $3.9 million to $5.1 million.

A portion of the riverfront land in question. The bridge carries Riverside Drive over what would have once been rail lands. (Jonathan Pinto/CBC)

When the OMB made its ruling in 2016, it determined the land was $710,000, and that since CP Rail held the mortgage on the property, Shergar was only owed $266,832.32, plus interest.

"It was significantly less than the offer that the city had made before the whole trial," Brode said. "So the question became who had to pay for the cost of this hearing before the OMB?"

The OMB decided in 2018 that Shergar should be responsible for paying for the city and its own legal costs for the proceeding, a decision that one commentator called "an unprecedented award of costs to the expropriating authority."

The Ontario Superior Court has now upheld that decision.

"They said in effect, 'Look, you received a fair offer from the municipality for the land that you lost, and as an owner, you have a right to full compensation ... but it becomes unreasonable — it starts to border on reckless — when you proceed with a case even though you've got a very good offer on the table,'" Brode said.

CBC News contacted Shergar's Kitchener-based lawyer, but has not heard back.

According to Brode, the right to appeal is not automatic, but the company could seek one if it desired.

About the Author

Jonathan Pinto is a reporter/editor at CBC Windsor, primarily assigned to Afternoon Drive, CBC Radio's regional afternoon show for southwestern Ontario. Email jonathan.pinto@cbc.ca.

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