LPAT File No.

1C190013

LOCAL PLANNING APPEAL TRIBUNAL

IN THE MATTER OF THE EXPROPR/AI|ONS ÁCI, R.S.O. 1990 C.E.26,
AND IN THE MATTER OF AN ARBITRATION

BETWEEN
1188042 ONTARIO lNG. and
CENTRAL MEAT MARKET (KITCHENER) LIMITED

Claimants

-and-

THE REGIONAL MUNICIPALITY OF WATERLOO

Respondent

REPLY

Date: July 15, 2019

WEIRFOULDS LLP
4100-66 Wellington Street West
PO Box 35
TD Bank Tower
Toronto, ON M5K I 87

Sean G. Foran, LSO #31047D

Tel: 416-365-1 1 10
Fax: 416-365-1876
sforan(@wei rfoulds. com

Alyssa Armstrong, LSO #721225

Tel: 416-941-5903
Fax: 416-365-1876
aarm stronq @wei rfou ld s. co m

Lawyers for the Respondent,

The Regional Municipality of Waterloo
TO: SORBARA, SCHUMACHER, MCCANN LLP
31 Union Street East
Waterloo, ON
N2J 188

David Sunday, LSO #48177N

Tel: 519-749-4602
Fax: 519-576-3234
dsundav@sorbaralaw. com
Lawyers for the Claimants

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 LPAT File No. 1C190013

LOCAL PLANNING APPEAL TRIBUNAL

tN THE MATTER OF THE EX?RO?R/AIIONS ACI R.S.O. 1990 C.E.26,
AND IN THE MATTER OF AN ARBITRATION

BETWEEN
1188042 ONTARIO lNC. and
CENTRAL MEAT MARKET (KITCHENER) LIM¡TED

Claimants

-and-

THE REGIONAL MUNICIPALITY OF WATERLOO

Respondent

REPLY
1. The Respondent, the Regional Municipality of Waterloo (the "Region"), admits
the legal definition of the expropriated lands ("Expropriated Lands") as described in paragraph
2 of the Claimants' Notice of Arbitration and Statement of Claim ("statement of Claim").

2. The Region admits the legal definition of the remaining lands ("Remaining
Lands") as described in paragraph 4 of the Statement of Claim. The Expropriated Lands and
Remaining Lands are hereinafter referred to as the Subject Lands ("Subject Lands").

3 ïhe Region denies the rest of the Statement of Claim

The LR T Proiect

4. This matter arises from the construction and installation of a 19-kilometre Light
Rail Transit ('LRT") railway from Conestoga Mall transit terminal in the Region to the Fairview
Park Mall transit terminal in Kitchener (the "LRT Project").

5. ln March 2015, construction of the LRT Project began on King Street in the City
of Kitchener, between Victoria Street and Union Street. Advance notice of road closures along
King Street during construction was provided by online announcements posted on the Region's

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social medla accounts in advance, and updates were distributed to and by the local media from
time to time. The Region gave 60-day and 1S-day notices of road closures, which notices were
delivered to residences and businesses in the vicinity of the LRT Project.

6. Construction related to the LRT Project near the Subject Lands was substantially
completed by September 2016.

Traffic Flow

7. The Region denies the allegations in paragraphs 24 and 25 of the Statement of

Claim, including the allegation that traffic was reduced by over 500/0, and puts the Claimants to
the strict proof thereof. ln the alternative, even if traffic flow was reduced as alleged by the
Claimants, which allegation the Region denies, the Region states that the Claimants have no
legal right to a minimum level of traffic flow.

Disturban Damaqes

L The Region denies the allegation in paragraph 39(a) of the Statement of Claim
that the construction period ran from March 23, 2015 to July, 28 2017 and instead asserts that
construction on the LRT Project which began on King Street between Victoria Street and Union
Street in March 2015 was substantially completed by September 2016.

9. The Region denies the allegation paragraph 39(b) of the Statement of Claim that
access to the Subject Lands and use of King Street West by Central's customers and potential
customers was unreasonably limited due to construction activities, including but not limited to
the following:

(¡) The Region denies the allegations in paragraph 39(bx¡i) of the Statement
of Claim and states that while King Street was under construction, access
to the Remaining Lands was always available to local vehicles and
pedestrians;

(ii) The Region denies the allegations in paragraph 3g(bxiii) of the Statement
of Claim. The Region states that there were temporary closures, from
time to time, during the construction period. The Region further states that
detour routes were in place to allow traffic to get to Grand River Hospital
and local access was available to the Subject Lands;

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 (iii) The Region denies the allegations in paragraph 39(b)(vi) of the statement
of Claim and states that although sidewalks in the vicinity of the
Remaining Lands were temporarily removed, the removal of same did not
interfere with pedestrian access to the Remaining lands. Pedestrian
access was maintained throughout the construction period;

(iv) The Region denies the allegation in paragraph 3g(bXvii) of the statement
of Claim and states that parts of King Street West between Victoria Street
and Union Street were temporarily closed for a maximum of 19 months.
The Region further states that detour routes were in place to get to Grand
River Hospital and local access was available to the Subject Lands; and

(v) The Region has no knowledge of the allegation in paragraph 39(b)(ix) of

the Statement of Claim.

10. The Region denies the allegations in paragraph 40(a) of the Statement of Claim,
but admits that there were reasonable and necessary schedule changes to the LRT Project.

11. The Region denies the allegations in paragraph 40(b) of the Statement of Claim
and states that its LRT Website was regularly updated to reflect schedule changes. ln addition,
notice was regularly given to area businesses and the public via direct communications and
advisories to the media.

12. The Region has no knowledge of the allegations in paragraph 40(g) of the
Statement of Claim.

13. The Region denies the allegations in paragraph 40(h) of the Statement of Claim
and states that local access was always maintained.

No Neqligence or Nuisance

14. The Region denies the allegations in paragraph 41 of the Statement of Claim that
it carried out construction negligently or that its acts amounted to nuisance. At all times, the
Region acted reasonably, competently, and diligently in accordance with all applicable
standards and states that there was no substantial interference with the Subject Lands.

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No Compengation for Market Value

15. The Region specifically denies that the Claimants are entitled to any
compensation for market value in addition to that paid under section 25 o'l the Expropriations
Acf. The Region states that the Claimants are not entitled to further compensation pursuant to
sections 13(2)(a) and 14(1) of the Expropriations Act and puts the Claimants to the strict proof
thereof.

No Business Losses. Disturban Damaqes or lniurious Affection

16. ïhe Region specifically denies that the Claimants have suffered any business
losses or disturbance damages as alleged in the Statement of Claim, or at all, and puts the
Claimant to the strict proof thereof. The Region states that the Claimants are not entitled to
compensation under section 13(2Xb) or 13(2)(c) of the Expropriations AcL

17. The alleged losses and damages do not amount to a disproportionate burden
borne by the Claimant as a result of the LRT Project. The construction of the LRT Project
occurred in the proximity to several properties within the Region, including a significant number
of commercial properties, and it had an impact across a broad cross-section of the Project area.

18. ln the alternative, if the Claimants suffered business losses or disturbance

damages during the construction of the LRT Project, which is denied, then the Region states
that such business losses or damages were not caused by the LRT Project. ln the further
alternative, the Region states that the alleged business losses or damages are remote and that
the Claimants failed to take reasonable steps to mitigate the alleged losses or damages.

19. ln the alternative, if the Claimants suffered injurious affection that is compensable
under section 13(2)(c) of the Expropriations Act, which is denied, the Region states that
compensation should be set-off by the betterment that resulted from construction of the LRT
Project. The LRT Project resulted in a substantial improvement to the Subject Lands. The LRT
Project provides the Subject Lands and the Claimants' business with superior access, increased
exposure to through traffic (both vehicular and pedestrian), and makes the Lands a highly
desirable business and re-development location.

20 The Region submits that the Claim should be dismissed

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THIS REPLY is given by WeirFoulds LLP, solicitors for the Respondent and the address to
which documents may be served on the Respondent is:

WeirFoulds LLP
4100-66 Wellington Street West
PO Box 35
TD Bank Tower
Toronto, ON MsK 187
Attention: Sean G. Foran and Alyssa Armstrong

Dated this 15th day of July, 2019

WEIRFOULDS LLP
4100-66 Wellington Street West
PO Box 35
TD Bank Tower
Toronto, ON MsK 187

Sean G. Foran, LSO #31047D

Tel:416-365-1 1 10
Fax: 416-365-1876
sforantOwei rfoulds.com

Alyssa Armstrong, LSO #721225

Tel: 416-941-5903
Fax: 416-365-1876
aa rm stro ng @we i rfou ld s. co m

Lawyers for the Respondent,

The Regional Municipality of Waterloo

TO SORBARA, SCHUMACHER, MCCANN LLP

31 Union Street East
Waterloo, ON
N2J 188

David Sunday, LSO #48177N

Tel: 519-749-4602
Fax: 519-576-3234
dsunday@sorbaralaw.com
Lawyers for the Claimants

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 LPAT File No. 1C190013

1188042 ONATRIO lNC. and - ANd - THE REGIONAL MUNICIPALITY OF WATERLOO

CENTRAL MEAT MARKET (KITCHENER} LIMITED
Claimants Respondent

LOCAL PLANNING APPEAL TRIBUNAL

ln the Matter of the Expropriations Act, R.S.O. 1990 C.E.26
And in the Matter of an Arbitration

REPLY

WeirFoulds LLP
Barristers & Solicitors
66 Wellington Street West, Suite 4100
P.O. Box 35, Toronto-Dominion Centre
Toronto, Ontario MsK 187

Sean G. Foran
(LSO #31047D)
sforan@weirfou lds. com

Alyssa Armstrong
(LSO #721225)
aa rmstron g @wei rfo u lds. co m

Tel: 416-365-1110
Fax 416-365-1876
Lawyers for the Respondent,
The Regional Municipality of Waterloo