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Alliston car wash suit against County hinges on unanswered questions

Posted February 24, 2014

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 of 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.

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