WINDSOR- Windsor is claiming a major precedent-setting victory in the protracted legal battle with a London development company that began with the city’s 1998 expropriation of riverfront land.
Rose City claims win in legal fight with London firm
During the last two decades, the then-owner of that 2.4-hectare property, London’s Shergar Developments Ltd., has been fighting unsuccessfully with the City of Windsor over the legitimacy of the expropriation, what Shergar should be paid and, most recently, how much interest it deserves after all these years - writes lfpress.co.
In a Jan.24 decision by the Ontario Municipal Board that Shergar already has said it will appeal, Shergar has been hit with legal costs and much less compensation than it had been seeking.
The board concluded Shergar shouldn’t be rewarded with 18years of sixper cent annual interest (the statutory amount) when “very little of that time was devoted to pursing its claim.” It said the city made every attempt to pay Shergar earlier, but Shergar “persistently resisted those efforts by pursuing groundless litigation.”
Shergar also has been ordered to pay both its own and the city’s legal costs, which likely will be “very, very substantial,” said City of Windsor lawyer Patrick Brode. His estimate is $400,000-plus for each party. He said normally the party fighting expropriation has its costs covered by the municipality.
“I think (the OMB) is sending a message,” said Brode.
The ruling is “unprecedented,” Toronto expropriation lawyer Andrew Baker writes in a Feb.8 article proclaiming the decision.
He said the decision “finally provides expropriating authorities with a clear precedent for penalizing a claimant’s delay and unreasonable litigation position.”
Shergar’s lawyer in this case, Ronald Moldaver, couldn’t be reached. Shergar’s original owner, London builder and developer Don Crich, died in 2015. Attempts to reach a spokesperson for his family were unsuccessful.
In the most recent ruling, the OMB blames Shergar for “excessive and unreasonable delay in a case that was not supported by credible evidence.” A key factor, according to the ruling, was that Windsor offered to settle the entire matter in 2015 for $1.2million.
Shergar didn’t take it and went forward with a two-week hearing in which it presented an unconvincing case, according to the board.
The OMB decided the interest the city should pay Shergar on the $266,832 owed for the riverfront land should be threeper cent annually for the first 15years of the dispute, then sixper cent from 2013.
But Shergar also owes Windsor money. An earlier Superior Court of Justice decision required Shergar pay the city’s $521,137 legal costs. That total has risen to $737,412 at fourper cent interest during 3,787 days. And an order for Shergar to pay Windsor’s $40,000 court costs from the Ontario Court of Appeal hearing has since risen to more than $60,000 at sixper cent interest for 3,077 days.
Brode said if the most recent ruling stands, “they owe us about $1million at the end of the day.”
Shergar informed the city a few days ago it intends to appeal, a process that will take at least another year.
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