Alliston car wash suit against County hinges on unanswered
The owner of Willies Car & Van Wash Ltd in
Alliston is in jeopardy of losing his bid for compensation plus
interest from Simcoe County, because of missed deadlines to answer
questions as part of the pre-hearing examination process for the
application to the Ontario Municipal Board (OMB) under section 26 of
the Expropriations Act.
In an OMB order issued Jan. 29, 2014 on a motion filed by the County
Jan., 10, 2014, Ron (RK) Beattie (Claimant), was obligated to file on
or before February 14, 2014 "with the Respondent, a response to all
questions... Failure to comply with this direction of the Board will
result in Notice of Arbitration and Statement of Claim of the Claimant
being struck and the Board's file being closed." (At this post, Free
Press Online was working to confirm whether the Feb. 14 deadline was
met). He is represented by Jay Feehely, who is also New Tecumseth's
solicitor. The Town is not a party in this claim.
Mr. Beattie owns and operates Willies which opened in 2000 on a 1.4 ha
site on the south side of Victoria Street E, just east of the Tottenham
Road. At the time, Tottenham Road was still connected to Cty Rd 10, and
the principal access road to Honda Canada Manufacturing plants in
Alliston. That would change five years later when Simcoe County, to
accommodate HCM's expansion plans, sealed off and sold Tottenham Road
between Albert Street and Industrial Parkway to Honda, and then
rerouted Cty Rd 10 one kilometre east, providing a new access point for
HCM, which opened in January 2007,
In 2010, Mr. Beattie made application to the OMB alleging rerouting the
County road "led to a significant drop in the number of vehicles using
its car wash. The claim is as follows:
1. Income Loss for Fiscal Year ending February 28, 2009 - $170,000
2. Loss of market value - $300,000
3. Compensation for out of pocket expenses due to the claim - $20,000
4. Legal, accounting, appraisal and other costs
5. Interest on compensation.
While the outstanding questions are not posted on the OMB site, they
are believed to be mostly related to financial disclosures to support
the claims for loss.
In its reply to the original suit, the County contends that traffic through the car wash "didn't fall off significantly until fiscal years 2008 and 2009" which "coincided with a severe recession in the auto industry and the subsequent elimination of the third shift at Honda."
According to the OMB order posted Jan. 29th, "the parties, on November
21, 2013, held a Discovery hearing pursuant to the Board's Procedural
Order at which time some questions were not answered, some answers to
some questions were held under advisement of Counsel.... The date set
for a response in the Procedural Order was December 13, 2012. The
Claimant made no response in the time prescribed."
"The uncontradicted submission of Counsel for the Claimant is that he
advised Counsel for the Respondent on December 13, 2013 that the
Claimant's accountant had been hospitalized and as such they were
unable to respond to the questions as the answers were in his files.
The Claimant, at the time of the filing of this motion being January
10, 2014, had not responded and had not provided any indication as to
if and when the answers to the questions resulting from the Discovery
hearing would be forthcoming."
Simcoe County, represented on this case by Shane Rayman, a partner in
the Toronto firm Rueter Scargall Bennett LLP, answered the delays by
filing a motion to strike the claim, and close the file if the
questions weren't answered by January 28, as well "an award on a
partial indemnity basis for motion costs" $6,500 plus taxes.
"Counsel for the Claimant, in a letter dated January 20, 2014,
indicated that the answers to the questions resided with the Claimant's
accountant who had been hospitalized with a broken leg," according to
the OMB material.
The Board ordered the deadline to be Feb. 14, which then triggered a
two week period to determine if another discovery hearing was required.
That would be followed by a three week timeline for the County to
provide its reports to Mr. Beattie. The two sides can amend dates on
consent, but were cautioned the planned hearing date would be remain
scheduled for Tues., June 16, 2014. The request for cost was also
reserved until then.