VIA COURIER

File No.: 63788

May 28, 2019

Local Planning Appeal Tribunal

655 Bay Street, Suite 1500
Toronto, ON M5G 1E5

Dear Sir/Madam:

Re: 1188042 Ontario Inc. and Central Meat Market (Kitchener) Limited v.
Regional Municipality of Waterloo
Partial expropriation of 760 King Street West, Kitchener

Please find enclosed our client's Notice of Arbitration and Statement of Claim together
with Affidavit of Service. We also enclose our firm’s cheque in the amount of $300.00
representing the required filing fee.

Sincerely,
SORBARA, SCHUMACHER, McCANN LLP

David Sunday

Encls.

 
 
 LPAT File No.

LOCAL PLANNING APPEAL TRIBUNAL

IN THE MATTER OF THE EXPROPRIATIONS ACT, R.S.O. 1990, C. E.26,
AND IN THE MATTER OF AN ARBITRATION

B E T W E E N:

1188042 ONTARIO INC. and

CENTRAL MEAT MARKET (KITCHENER) LIMITED

Claimants

and

THE REGIONAL MUNICIPALITY OF WATERLOO

Respondent

NOTICE OF ARBITRATION

1. Take notice that the Claimants, 1188042 Ontario Inc. (“118”) and Central

Meat Market (Kitchener) Limited (“Central”) (collectively the “Claimants”), require that

the compensation claimed herein from the Respondent, the Regional Municipality of

Waterloo (the "Respondent”), with respect to the lands described below be determined

by the Local Planning Appeal Tribunal.

2. The Claimants claim compensation for their interests as owners in the

following lands expropriated by the Respondent:

Part of Lots 13, 14, and 29, Subdivision of Lot 15, German
Company Tract, Part of Linwood Avenue and Part of Lot 21,
Plan 413, being Parts 3, 4, 5, 6 and 10 on Expropriation Plan
WR726569, all in the City of Kitchener, Regional Municipality
of Waterloo, being part of PIN 22327-0216 (LT)

(the “Expropriated Lands”).

 -2-

3. The Claimants claim compensation for the market value of the Expropriated

Lands, as well as compensation for damages which are the natural and reasonable

consequence of the expropriation.

4. Further and in the alternative, the Claimants claim compensation for injurious

affection to their interests as owners in the following remaining lands:

LOTS 15.21, PT LOTS 13,14,29, SUB’N 15 GERMAN

COMPANY TRACT. LOTS 16,17, PT LOTS 18,19,21, PLAN
413. PT OF LINWOOD AVE. (FORMERLY WILLOW ST)
PLAN 413 CLOSED BY BY.LAW 86.166, INSTRUMENT
862885, BEING PTS 1,2,3,4 ON 58R.11129, SAVE &
EXCEPT PTS 3, 4, 5, 6, & 10 ON WR726569; SUBJECT TO
AN EASEMENT AS IN 922347; SUBJECT TO AN
EASEMENT AS IN 867878; CITY OF KITCHENER, being all
of PIN 22327-0231 (LT)

(the “Remaining Lands”).

5. The Expropriated Lands and the Remaining Lands are referred to herein

collectively as the Subject Lands.

6. An illustration of the Subject Lands expropriated by and/or injuriously affected

by the Respondent is attached hereto as Schedule “A”.

 -3-

STATEMENT OF CLAIM

The Subject Lands

7. The Subject Lands were purchased by Central on the 18th day of September

1986 for the purpose of operating a grocery store which it opened in or about 1986.

8. On the 28th of January 1998, Central transferred the Subject Lands to 118,

which is the parent company of Central. Both Central and 118 are owned and controlled

by Mike Williamson and Benjamin Pino, who are each principals of both companies.

9. At the time of the expropriation in 2012, Central was occupying the Subject

Lands as a tenant for the purpose of operating its grocery store business thereon. Central

has continued in occupation of the Remaining Lands without interruption since the date

of the expropriation and continues to operate its grocery store business thereon, but with

significantly diminished revenues.

10. Central’s grocery business was heavily traffic dependent and benefitted from

being located upon a busy four-lane arterial road (King Street West) in a built-up area of

Kitchener known as midtown (due to its location between Downtown Kitchener and

Uptown Waterloo). The Subject Lands were proximate to the Grand River Hospital, the

Mount Hope Cemetery, a number of elementary and secondary schools, extensive

surrounding residential neighbourhoods, and Grand River Transit bus stops.

11. Before the expropriation, the Subject Lands had a site area of approximately

2.77 acres and were improved with a grocery store building having an area of

approximately 21,000 square feet (branded as “Central Fresh Market”) and a separate
 -4-

1.5 storey residential dwelling addressed as 33 Linwood Avenue. The residential dwelling

has since been demolished.

The Expropriation Process

12. The Respondent commenced expropriation proceedings in relation to the

Expropriated Lands in 2012. The Expropriated Lands were required for construction and

operation of a new light rail transit system in the Region of Waterloo, which was to include

the construction of 19 km of LRT corridor between Conestoga Mall in Waterloo and

Fairview Park Mall in Kitchener (the "LRT Works"). The LRT Works included

reconstruction and reconfiguration of King Street West between Victoria Street and Union

Street.

13. The Respondent served the Claimants with a Notice of Application for

Approval to Expropriate in July 2012.

14. The Respondent approved the expropriation on or about the 29th day of

August 2012.

15. The Respondent registered a plan of expropriation in the Land Registry Office

for Waterloo (LRO #58) on the 22nd day of November 2012 as Instrument No. WR726569,

thereby vesting title to the Expropriated Lands in the Respondent.

16. The Expropriated Lands comprised approximately 0.029 acres (1,263 square

feet) of land fronting along King Street West.

 -5-

17. The Respondent served its Notice of Expropriation on or about the 14th day

of December 2012, with an accompanying Notice of Possession which provided for

transfer of possession to the Respondent on the 16th day of March 2013.

18. The Claimant did not deliver a Notice of Election. As such, the effective date

for the purpose of this claim is the date of registration of the plan of expropriation, being

the 22nd day of November 2012.

LRT Works

19. Prior to the Expropriation and construction of the LRT Works, King Street

West in the vicinity of the Subject Lands was a four-lane arterial Regional Road linking

Downtown Kitchener with Uptown Waterloo.

20. As a result of the construction of the LRT Works, King Street West in the

vicinity of the Remaining Lands is now a two-lane street with LRT tracks located between

one Eastbound and one Westbound vehicle lane.

21. As a result of the construction of the LRT, there are additional stop lights to

the West of the Remaining Lands on King Street West.

22. The LRT tracks are separated from motor vehicle traffic by a raised median

which prevents left turns from King Street West in most areas between Victoria Street

and Union Street. Left turn movements have also been specifically restricted at most

intersections along King Street West in the same area. Left turn movements from Victoria

Street onto King Street West have also been restricted.

 -6-

23. Central’s grocery store business is heavily reliant on and sensitive to changes

in motor vehicle traffic.

24. The LRT Works have reduced motor vehicle traffic on King Street West in

front of the Remaining Lands by over 50%. Further reductions in motor vehicle traffic may

occur once LRT trains begin to run in June 2019.

25. As a result of the expropriation and the LRT Works, including the physical

and intersection changes to King Street West, vehicle traffic has been largely diverted

from King Street to Weber Street.

26. The construction or use, or both, of the LRT Works have substantially

reduced customer traffic to Central’s grocery store and permanently reduced Central’s

sales and profits as compared to pre-LRT levels.

Mitigation Efforts

27. Soon after the start of the LRT Works on King Street West between Victoria

Street and Union Street, Central’s customer traffic, sales and profits declined significantly.

Central took several steps to mitigate its losses.

28. Central increased its advertising spending during 2015 and 2016. Its

advertising included maps showing customers how to get to Central Fresh Market.

29. Repeated extensions of closures and completion delays prevented Central

from planning promotions or advertising to coincide with the completion of a part of the

LRT Works and to encourage customers to return to the store.

 -7-

30. Central reduced wages, benefits and bonuses in response to the decline in

sales caused by the expropriation, construction, and use of the LRT Works.

31. Central set up and regularly maintained approximately 60 directional signs

along key routes to make up for deficiencies in the Respondent’s detour signage.

Central’s signage used the Central Fresh Market branding and included directional arrows

to lead customers to Central Fresh Market.

32. Municipal or construction contractor employees removed significant numbers

of Central’s directional signs, such that regular maintenance and replacement by Central

was required.

33. The rear of the Remaining Lands abuts Linwood Avenue, but the site plan for

the Remaining Lands does not permit access from the Remaining Lands' parking lot to

Linwood Avenue. With the permission of the City of Kitchener, Central opened a rear

entrance to Central Fresh Market via Linwood Avenue in May 2015.

34. Central paid to cut a concrete curb to open the rear entrance and ensured its

directional signs were placed in appropriate locations to point customers to the new rear

entrance. The rear entrance remained open until the 6th day of January 2017 when the

City of Kitchener required it to be closed.

35. While aware that Central's business losses continued to mount and knowing

that construction on King Street West between Union Street and Victoria Street were

incomplete, the Respondent refused Central’s request that the Respondent intervene with
 -8-

the City of Kitchener to keep the rear entrance open subsequent to the 6th day of January

2017.

36. In or about May 2017, the City of Kitchener authorized the reopening of the

rear entrance solely for the duration of 7 p.m. to 7 a.m. nighttime construction closures of

King Street West. The rear entrance was permanently closed upon completion of the

nighttime construction closures in or about mid-June 2017.

Market Value

37. 118 claims $86,000 for the market value of the Expropriated Lands, less

$26,100 in interim compensation paid by the Respondent pursuant to Section 25 of the

Expropriations Act on or about the 14th day of February 2013.

Disturbance Damages

38. The Claimants have suffered damages as a natural and reasonable

consequence of the expropriations. In the alternative, the Claimants have suffered

personal and business damages arising from the construction or use, or both, of the LRT

Works as the Respondent would be liable for if the construction or use were not under

the authority of a statute.

39. Specifically, the Claimants plead that that Central has suffered damages as

a result of the expropriation and the LRT Works as follows:

(a) Construction of the LRT Works commenced on the 23rd day of March 2015

and were not substantially completed until the 28th day of July 2017, over

28 months later;
 -9-

(b) Access to the Subject Lands and use of King Street West by Central’s

customers and potential customers was unreasonably restricted and/or

limited due to construction activities, including but not limited to:

(i) the complete reconstruction or realignment of underground and

above ground utilities and services, the reconfiguration and

reconstruction of the roadway, intersections, curbs, sidewalks and

required landscaping, and the construction of an LRT corridor, with

median separations, and LRT stations in the approximate center of

the road allowance by the Respondent;

(ii) the closure by the Respondent of the Eastbound direction of King

Street West in the vicinity of the Remaining Lands for over 17 months

which prevented vehicular traffic from reaching the Remaining Lands

from the West along King Street West for an unreasonably long

period even though other nearby parts of King Street West retained

two-way traffic during this period;

(iii) the complete closure by the Respondent of King Street West

between Victoria Street and Moore Avenue for over 25 months,

thereby preventing vehicular traffic from travelling from Downtown

Kitchener to the Remaining Lands via King Street West for an

unreasonably long period;

(iv) the full or partial closure of intersections by the Respondent in the

zone of the LRT Works at certain times and/or for extended periods;
 -10-

(v) the detouring of two major public transit bus routes off King Street

West thereby interfering with the use of the bus stop located directly

in front of the Remaining Lands and other nearby stops;

(vi) the removal of sidewalks by the Respondent in the vicinity of the

Remaining Lands for over 15 months which interfered with

pedestrian access to the Remaining Lands;

(vii) the closure of King Street West from Union Street to Victoria Street

as a Regional Road from March 23, 2015 to December 8, 2016 and

the extended closure between Wellington Street and Victoria Street

until July 28, 2017, both by the Respondent;

(viii) restricting passable parts of King Street West to local use only for

residents, businesses, emergency services and hospital patients and

students; and,

(ix) the closure of a potential alternate route around the work on the

grade separation with the closure of Waterloo Street on June 26,

2015;

(c) there was interference with vehicular, pedestrian and transit-user access to

the Remaining Lands;

(d) there were substantial reductions in customer traffic and sales, resulting in

revenue reductions and business income losses to Central;

 -11-

(e) there were intermittent lane closures, short-term lane restrictions, 7 p.m. to

7 a.m. closures and restrictions at intersections and flag-workers which

increased the interference with the access to the Remaining Lands and the

use of King Street West;

(f) traffic levels in front of the Remaining Lands were reduced by over 70%,

and at times by over 80%, during the Construction Period;

(g) the Respondent’s detour signage indicating that businesses in the

construction zone were open were undersized, insufficient, unclear, and in

some cases in error. Such signage also normally routed customers along

longer detour routes than necessary and which still ultimately required travel

through a part of the construction zone;

(h) The Respondent planned to commence LRT operations in 2017, but it has

repeatedly delayed launch which is presently scheduled for the 21st day of

June 2019;

40. Throughout the Construction Period, interferences with access to the

Remaining Lands were substantial and unreasonable due to extended closures and

delays, including:

(a) Repeated failure of the Respondent to adhere to project timelines and

project phasing plans, resulting in repeated delays, prolonged road

closures, public confusion, and prolonged traffic disruptions and traffic

deterrence due to construction;

 -12-

(b) Repeated failure of the Respondent to communicate project timeline and

phasing plans to the public;

(c) The lengthy delay in the restoration of two-way traffic in front of the

Remaining Lands;

(d) The delayed start and completion of the grade separation works between

Victoria Street and Moore Avenue, and associated delays in the Moore

Avenue to Wellington Street block;

(e) Repeated delays in reopening of closed or partially closed intersections;

(f) Extensive delays in the reconstruction of King Street West between Union

Street and Wellington Street resulting in extended periods where the

roadway was largely unpaved, rutted, potholed, and muddy or dusty;

(g) The Respondent unreasonably refused Central’s requests to re-establish

two-way traffic at the Remaining Lands. Central offered to contribute to the

costs of establishing such two-way traffic as part of these requests;

(h) The Respondent detoured drivers away from King Street West to Weber

Street, thereby taking Central’s customers and potential customers up to 1

km away from King Street;

(i) Further interference with access to the Remaining Lands was caused by

the detouring of bus routes. Route 7 Mainline, a major bus route that had

travelled along King Street West and stopped directly in front of the
 -13-

Remaining Lands prior to construction, was detoured off King Street West

for over 29 months and the nearest stop during that time was approximately

400 metres from the Remaining Lands. The 200 iXpress route, which

stopped within 200 metres of the Remaining Lands prior to construction,

was permanently detoured off of King Street West between Union Street

and Victoria Street to Weber Street starting in March, 2015; and

(j) Other delays and closure extensions as may be proven by the Claimants.

41. The Claimants therefore plead that the Respondent carried out the

construction of the LRT Works negligently (including as to phasing, scheduling, traffic

management, detouring, completion, mitigation of impacts to business, and general lack

of compliance with industry standards for same) and/or unreasonably interfered with

Central’s normal use of the Remaining Lands constituting nuisance at law. The

aforementioned acts imposed an unreasonable and disproportionate burden upon

Central caused by the expropriation and the construction or the use, or both, of the LRT

Works.

42. Furthermore, the LRT Works have substantially and unreasonably interfered

with access to the Remaining Lands and Central’s use of the property for a grocery store.

Such interference is expected to result in future business losses or a permanent loss of

goodwill.

43. Central therefore claims against the Respondent for the permanent loss of

goodwill or for the future loss of income subsequent to January 20, 2019 as disturbance
 -14-

damages or, in the alternative, future business losses in the nature of damages for

injurious affection.

44. Central therefore claims the following amounts as disturbance damages

pursuant to Section 13(2)(b) of the Expropriations Act or, alternatively, injurious affection

damages pursuant to Section 13(2(c) of the Expropriations Act:

(a) $3,500,000 for loss of income, out of pocket costs (including the costs of

Central’s “Mitigation Efforts” as detailed above), and other business losses

from the 23rd of March 2015 through to the 20th of January 2019; and

(b) $3,500,000 for permanent loss of goodwill or, alternatively, future loss of

income subsequent to the 20th of January 2019;

(c) In the alternative to (a) and (b), Central states that the expropriation and the

LRT Works will necessitate the relocation of Central’s grocery store

business and it claims $10,000,000 for special difficulties in relocation

pursuant to Section 13(2)(d) of the Expropriations Act

(collectively the “Disturbance Damages”).

45. Central states that the Disturbance Damages were the natural and

reasonable consequence of the expropriation or, alternatively, arose from the

construction or use, or both, of the LRT Works. Central further states that, but for the

expropriation and construction or use, or both, of the LRT Works, Central would not have

sustained the Disturbance Damages.

 -15-

46. Central is a wholly owned subsidiary of 118. As such, the Disturbance

Damages suffered by Central also represent damages to 118 and are claimed by 118

jointly and severally with Central.

Summary of Claim

47. The Claimants therefore claim compensation for the following items which

are the natural and reasonable consequence of the expropriation:

(a) 118 claims $86,000 for the market value of the fee simple interest

expropriated by the Respondent, pursuant to Sections 13(2)(a) and 14(1)

of the Expropriations Act, less $26,100 in interim compensation paid by the

Respondent pursuant to Section 25 of the Expropriations Act on or about

14th day of February 2013;

(b) Central claims $3,500,000 for disturbance damages for loss of income, out

of pocket costs, and other business losses from the 23rd of March 2015

through to the 20th of January 2019, pursuant to Section 13(2)(b) of the

Expropriations Act;

(c) Central claims $3,500,000 for disturbance damages for permanent loss of

goodwill or, alternatively, future loss of income subsequent to the 20th of

January 2019, pursuant to Section 13(2)(b) of the Expropriations Act;

(d) In the alternative to (b) and(c) above, Central claims:

 -16-

(i) $3,500,000 for damages for injurious affection for loss of income

from the 23rd of March 2015 through to the 20th of January 2019,

pursuant to Sections 13(2)(c) of the Expropriations Act; and

(ii) $3,500,000 for damages for injurious affection for permanent loss of

goodwill or, alternatively, future loss of income subsequent to the

20th of January 2019, pursuant to Sections 13(2)(c) of the

Expropriations Act;

(e) In the further alternative to (b), (c), and (d) above, Central claims

$10,000,000 for special difficulties in relocation, pursuant to Section

13(2)(d) of the Expropriations Act, to permit Central to relocate and re-

establish its grocery store business in a new location;

(f) All legal, appraisal, and other consultant costs for the claim for

compensation in accordance with Section 32(1) of the Expropriations Act;

(g) Interest in accordance with section 33 of the Expropriations Act; and

(h) Such other and further relief as counsel may advise and this Tribunal deem

just.

48. This notice is given by Sorbara, Schumacher, McCann LLP, solicitors for the

Claimant. The address at which documents may be served on the Claimant is:

SORBARA, SCHUMACHER, MCCANN LLP

31 Union Street East
Waterloo ON N2J 1B8
 -17-

Attention: David Sunday

Dated at Waterloo this 28th day of May 2019. SORBARA, SCHUMACHER, MCCANN LLP
31 Union Street East
Waterloo ON N2J 1B8

David Sunday (LSO No. 48177N)

T: 519-749-4602
F: 519-576-3234
E: dsunday@sorbaralaw.com

Lawyers for the Claimants

RCP-E 14A (June 9, 2014)

 -18-

SCHEDULE “A”
1188042 ONTARIO INC. and CENTRAL MEAT MARKET -and- THE REGIONAL MUNICIPALITY OF WATERLOO
(KITCHENER) LIMITED
Claimants Respondent
LPAT File No. .

LOCAL PLANNING APPEAL TRIBUNAL

NOTICE OF ARBITRATION AND

STATEMENT OF CLAIM

SORBARA, SCHUMACHER, MCCANN LLP

31 Union Street East
Waterloo ON N2J 1B8

David Sunday (LSO No. 48177N)

T: 519-749-4602
F: 519-576-3234
E: dsunday@sorbaralaw.com

Lawyers for the Claimants

RCP-E 4C (July 1, 2007)