Frank Sperduti | BLG

The Lawyer/Appraiser Relationship

Frank Sperduti — Mon, 11 Feb 2013 20:08:38 +0000

Frank Sperduti, a partner at Borden Ladner Gervais LLP, highlights the importance of understanding the roles that the lawyer and appraiser play in the adversarial process and what each brings to the team.

Read full paper…

Frank Sperduti is a partner with BLG and a member of the Board of Directors and past president of the Ontario Expropriation Association. Frank practices in the areas of civil litigation and administrative law, with emphasis on expropriations, planning, environmental law, commercial litigation and regulatory prosecutions. For more information on Frank Sperduti please visit http://www.blg.com/en/home/our-professionals/Pages/Sperduti-Frank.aspx

Perils of Proving Injurious Affection

Frank Sperduti — Thu, 31 Jan 2013 16:34:39 +0000

Recovery of damages for injurious affection is a fundamental part of the basket of claims afforded to owners impacted by a partial taking. Conceptually, injurious affection seems straight-forward enough: the decrease in the value of remaining lands caused by a partial taking. However, as Frank Sperduti of BLG suggests and as recent case law demonstrates, it is dangerous to take claims for injurious affection for granted, and proving injurious affection presents a critical challenge.

In Re Ammouri (2008) 95 LCR 59, the Ontario Ministry of Transportation expropriated approximately 7 percent of a 2.25 hectare vacant parcel to facilitate the widening of Highway No. 10 from three lanes to five lanes betweenBrampton and Orangeville. The Board determined that the value of the taking was $15,000, and the owner claimed an additional $70,775 for injurious affection to the remaining property, as documented in two different appraisal reports. The Board scrutinized the appraisals and found that both reports were flawed in that they presumed there was injurious affection and then went on to calculate the extent of it rather than setting out to prove there was any damage at all.

The Board ultimately found that the taking had not altered the shape of the remaining property or significantly reduced its size, nor was future development of the property hindered by the taking. The Board could see no ongoing damage to the remaining property and thus denied the claim for damages, with Member J.R. McKenzie declaring: “Injurious affection is not axiomatic as a consequence of a taking.”

Similarly, in Henery v London (City) (2010), 100 LCR 297 (OMB), the Board rejected a claim for injurious affection allegedly resulting from the expropriation of a 990 square-foot temporary easement from a residential site to facilitate a road widening project. The easement persisted for 21 months, and upon expiration it was returned to the owners unaltered. In fact, it was not clear that the City had even used the temporary easement area at all. Nonetheless, the claimants asserted that the taking and the road project had permanently reduced the market value of their remaining property by $35,650.

The theory of the claimant’s case was that (a) there is little difference in the degree of injurious affection to the remaining lands whether the taking is a temporary easement or a fee simple strip widening; (b) the roadway in question was busier as a result of the improvements thereto; (c) the owners “bundle” of rights was diminished by virtue of the widening of the road – notwithstanding none of the claimant’s lands were required for the widening other than the TLI; and (d) the remaining lands would suffer from long-term stigma and a diminution in value arising as a “spill over” effect from the decrease in value caused to neighbouring properties that suffered fee simple takings. The Board categorically rejected each of the claimant’s arguments, distinguishing TLI takings from fee simple takings for the purposes of assessing injurious affection. The Board concluded there was simply not enough evidence of a decrease in value arising from the temporary taking, and that the increased traffic and its associated adversities “led to the expropriation and were not the result of the expropriation”. The Board did award the sum of $1,500 for injurious affection for personal damages during construction.

Interestingly, the Board stopped short of deciding whether the infamous “Edwards Rule” – which requires that a portion of the alleged offending works be constructed on the land taken – applied in the circumstances of the case. The Board held that:

“the onus is on the Claimants to prove that the value of the subject property has been permanently diminished by the acquisition of the easement… [T]he Claimants have not proven the loss and therefore the Board does not need to determine whether “Edward’s Rule” is applicable in this case.”.

Successful claims for damages for injurious affection in “no land taken” cases raise a completely separate and distinct set of challenges, as has been demonstrated by the Ontario Court of Appeal’s recent decision Antrim Truck Centre Ltd. v. Ontario (Transportation), (2011), 323 D.L.R. (4th) 641 (Ont. C.A.). A discussion of that case, and those leading up to it, is beyond the scope of this paper. What is critical to note for the present purposes is that, even in “land taken” cases, there is no presumed entitlement to damages for injurious affection. Both Henery and Ammouri demonstrate that the evidentiary burden to prove a permanent loss in value is not diminished simply because part of the claimant’s land was expropriated.

October 12, 2011 Decision and Order of the Board

Frank Sperduti — Tue, 29 Jan 2013 20:32:11 +0000

This is the first pre-hearing conference decision in respect of the appeals related to the new City of Hamilton (City) Urban Official Plan adopted by the City on July 9, 2009 wherein Frank Sperduti of BLG represents the Appellants, Freeland Developments Limited.

Read full decision…

The Lawyer Weekly article, January 11, 2013

Frank Sperduti — Thu, 24 Jan 2013 23:49:04 +0000

Gabrielle Kramer, a member of the Borden Ladner Gervais LLP EMER Practice Group, was quoted in January 11, 2013 issue of The Lawyer Weekly in an article entitled “Clean-up cost landscape shifts, owners at greater risk”. To read this article, please click on the link below.

Read full article…

Stephen Waqué, Frank Sperduti and Sean Gosnell are partners at Borden Ladner Gervais LLP and members of BLG’s EMER Group (Environmental, Municipal, Expropriation, and Regulatory Law). For more information on any of these professionals, please visit: www.blg.com

Time Castle Holdings Inc. v. Summit Green Land Corporation

Frank Sperduti — Wed, 16 Jan 2013 22:03:04 +0000

Frank Sperduti and Sean Gosnell, counsel for Summit Green Land Corporation, attended before J. Bielby at the Superior Court in Ontario on June 24, 2009 to make costs submissions on behalf of Summit Green Land Corporation. To read the Costs Endorsement of J. Bielby, please click on the link below.

Read full endorsement…

Injurious Affection: A Case Law Update

Frank Sperduti — Tue, 18 Dec 2012 19:32:08 +0000

Frank Sperduti’s paper entitled “Injurious Affection to Lands Trapped in the Parkway Belt West Plan: A Case Law Update” reviews two cases which had the same three issues in dispute: the market value of the lands taken, the extent of the injurious affection to those remaining lands to the south of the highway, and the injurious affection (if any) to the north remaining lands.

Read full paper…

Preparing the Appraiser for Trial

Frank Sperduti — Mon, 10 Dec 2012 16:59:40 +0000

Frank Sperduti, a partner at Borden Ladner Gervais LLP, provides a checklist of practical advice and techniques to expert witnesses preparing to give evidence at trial.

Read full paper…

First Pre-hearing Decision and Order of the Board

Frank Sperduti — Thu, 22 Nov 2012 20:25:46 +0000

Frank Sperduti, counsel for Freeland Developments Limited, attended the first Pre-hearing Conference and motion regarding appeals related to the new City of Hamilton Urban Hamilton Official Plan, adopted by the City onJuly 9, 2009 and approved by the Minister of Municipal Affairs and Housing with modifications on March 16, 2011. To read the Decision and Order of the Board, please click on the link below.

Read full decision…

City of St. Catharines v. Scaletta et al.

Frank Sperduti — Thu, 22 Nov 2012 20:22:35 +0000

Frank Sperduti, counsel for the owners, disputed Local Improvement Charges involving four types of public works (new storm sewer, sanitary sewer, water main and sidewalks), along Fourth Avenue, under four separate By-laws.

Read full decision…

Spagnuolo et al. v. City of Vaughn Decision issued May 6, 2009

Frank Sperduti — Wed, 21 Nov 2012 21:09:01 +0000

Frank Sperduti, counsel for the applicants applied for minor variances to the City of Vaughan’s Zoning By-law 1-88 for their property located at 73 Cachet Hill Crescent, Woodbridge, Ontario in order to continue construction of a pool deck and stairs located at the rear yard of an existing two-story single family detached dwelling.

Read full decision…