It was an abuse of process and the use of power that was unbecoming a decent municipal government.

News 100 redBy Pepper Parr

July 29, 2014


The power that your municipal government has can shock at times.

One of the things a city can do is expropriate a person’s property.  They can’t just walk in a take it – there is a process that has to be followed.  The city first has to serve notice that it wants to expropriate a piece of property and then there is what is called a Hearing of Necessity at which the city has to justify the wish to expropriate.

The city is doing reconstruction and widening of Waterdown Road between Plains Road and Masonry Court including the provisions of full municipal services.  It needs to buy property to do that work.   Vito Tolone, Senior Transportation Planner in the Engineering Department testified at a Hearing of Necessity that “as presently configured, Waterdown Road will  not be able to accommodate the travel demand growth anticipated by 2031″

Lee property - part 1 and 2

A Hearing of Necessity report said just part 1 was needed for the road widening; city decided to expropriate all the land owned by the Lee family at the intersection of Plains Road and Waterdown Road. Not a word heard from the ward council member Rick Craven nor was any explanation given for the full taking

Tolone also  testified that if the sole objective of the City was to construct the presently planned works to the intersection of Plains Road East and Waterdown Road, a full taking of the Lee property would not be necessary.

Mr. Tolone testified that sometime between Environmental Assessment (EA)  (December 6, 2006) and the Notice of Expropriation being served on the land owner on or about March 24, 2014 the City of Burlington decided that it was desirable that the City expropriate more land than required to perform the scope of the work contemplated in the EA document.   On that basis, the City seeks a full expropriation of the Lee property.

The basis of that decision was stated by Mr. Tolone to be concerns about the growth of Plains Road which might require further widening.  However, no description of the likely scope of such future  work was given.   In addition, there was no evidence that even with a requirement for a future widening or other work, that a full taking of the Lee property would be required.

Hearing officer Victor Freidin Q.C. ,  said in his findings that “There is nothing in the Notice of Grounds  about the objective being wider than acquiring property to perform the “Work” as defined.  If the objective was to make the road wider, as suggested by the City, it should have been so stated in the Notice of Grounds.

In my opinion, the Notice of Grounds gives rise to questions of prematurity, a concern that future work (after the “Works” are completed) is likely to occur.  Even if am incorrect in that regard there was no evidence regarding the nature of any such future work, when that future work might occur, or the specific purpose of that future work.  In addition, Mr. Tolone testified that the concern re future work would relate to Plains Road, but the two grounds described above refer to “future capacity and safety deficiencies along Waterdown Road”, not Plains Road.   I further note that these references to future deficiencies appear to be traffic related -not some other unidentified concern.

“Prematurity” in the context of Hearings of Necessity, refers to a situation in which an expropriating authority seeks to expropriate land with insufficient evidence regarding when, if ever, land will be required in the future to achieve the objective of the Expropriating Authority. If an Expropriating Authority does not really know if it will ever have to use the expropriated land to achieve its objective, the tentative nature of that objective is a relevant factor to consider, when balancing the public and private interests.  An Inquiry Officer can find that a proposed expropriation is not reasonably defensible because it is premature.

The onus at a Hearing of Necessity is on the Expropriating Authority to meet the test described in section 7(5) of the Expropriations Act.   I find that they have failed to meet that test as it relates to its proposed full taking.

Sounds like a open and shut case.  City first asks for part of the 1300 sq m property (410 to be exact), but then changes its mind and says it wants all the property without giving the required justification.

The owners of the property, Mrs. Kyung Ja Lee (Lucia Lee)  understood the need to widen the road, but she didn’t feel the city needed all of her property.  Isaac Tang, her lawyer argued that the city could take a portion of the property and leave the rest in the hands of the owner.

Doing an actual expropriation takes time – about four months before the property changes hands.  The Lee’s said they were prepared to use a section of the Expropriation Act that would give the land to the city on the understanding that the portion not needed would be returned to them.  Isaac Tang said the Lees were prepared to let the price to be paid for the land, to be agreed upon after the expropriation has been done.

The property, amounting to 1300 square feet has been the location of the Murray Variety store that the Lee family operated for many, many years. They were the typical Korean immigrant family that bought the property, operated the store and lived in the space above the store.  They worked hard and they prospered.  When Mr. Lee died, Mrs. Lee found that she could no longer operate the store by herself and she rented out the business.

The Hearing of Necessity report was dated June 24th and went to the Community and Corporate Standing Committee on July 8th – things seldom move at that speed in any municipality.

When the matter got to the Standing Committee it got less than 30 seconds. Chairman Meed Ward asked if there was any discussion; there being none she asked someone to move the report – Councillor Rick Craven moved it – and off it went to city council for final approval.

Isaac Tang, counsel for the Lee family, did not attend the Standing Committee, probably a tactical error.  He said there was some confusion as to the dates for the meeting and that he could not find any reports on the city web site (We are hearing more of the complaint lately.)

Lee Murray Variety intersection

It is a busy intersection and Waterdown Road does have to be widened to handle future traffic projections. City documents said less than a third of the land was needed – they expropriated all the land without giving a public explanation.

When he did delegate at city council he got caught by the clock that gave him just five minutes to make his points.  Along with the decision from the Hearing of Necessity Officer that the city had not made its case for a full taking, Tang pointed out the city was relying on a section of the Municipal Act, that had been repealed some time ago. Some in the legal department had not done their homework.

The city argued that the remaining 900 square meters was too small to develop; Tang pointed out  it was less than a km from the Aldershot GO station and part of a major traffic intersection.  Tang said he could see a Starbucks going in there easily.

Tang added to what could only be seen as an impressive set of arguments, when he pointed out that if property acquired by the city for a purpose and then was not used for that purpose, the city was obligated to make it available to the original owner.

There were a few questions from Council – Councillor Sharman was brusque, close to being rude, when he asked Mr. Tang why he was not at the Standing committee meeting.

Council planned on going into a Closed Session to hear what the legal department had to say as to why they were apparently supporting the full taking.  The public will never know what the city lawyers had to say – all that is off the record.

Council stayed in closed session for just over half an hour.  When they came out they passed the motion to expropriate, which was not set out in the Council agenda; so no one was all that sure just what it was they were passing.

And that was it.   Not a word from Councillor Craven whose ward the property was located in; not a word as to why the city chose to disregard the finding of the Hearing of Necessity Officer.

No one explained to the Lee’s why all of their property was being taken when the reports made it clear that all of the land was not needed.

Those words: transparency and accountability got lost at this council meeting.

The Mayor who likes to pride himself on his compassion for people wasn’t even able to look the Lee’s in they eye.

Lee family Murray Variety

The Lee family immigrated from Korea more than 30 years ago; worked hard, raised two children and prospered. They understood that the city had to expropriate part of the land – they just didn’t understand why it was all taken. They will be paid fair price – but based on documents put into evidence at the Hearing of Necessity – the property was not needed.

An immigrant family, who matriarch was now the head of the household had to listen and try to understand why 30 years of hard work was being taken from them.

Yes, they would be paid a fair price – but that wasn’t the issue.  The land was theirs; it wasn’t needed by the city, but they took it anyway.

They had the power to do so.  Lord Acton, who visited Burlington not that long ago, was the son of the Peer who wrote:  “Power corrupts and absolute power corrupts absolutely.”

Let Councillor Cravens friends in the Beachway heed this example.  The same thing is going to happen to them.  Small matter that the Beachway property belongs to the Region, these municipal bureaucrats are all cut from the same cloth.


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10 comments to It was an abuse of process and the use of power that was unbecoming a decent municipal government.

  • lyn

    Interesting. Not touched upon was the ever present issue of ‘Fair Market Value’. Will Mrs. Lee be properly compensated for this private property ‘trespass’? Can any monies ever adequately compensate someone when their ‘home’ is taken away from them? A shocking & sad tale. Not the least surprised to hear of Craven’s lack of concern for long-standing residents. His Ward ‘vision’ has always been on the ‘Grand’ side, with little regard for residents, or long term consequences.

  • John Sweeny

    Saying that we don’t have the whole story only HIGHLIGHTS the issue.

    This strategy and tactic (these situations are not accidental/oversights) is consistent from this council. Let’s provide as little information as possible and then only IF people ask. Next we can make decisions between ourselves and in “Closed Session” (AKA – “We are going to do what we want anyway”). Finally, if anyone does ask questions let’s baffle them with process, procedure and useless information. IF someone still makes it through all of this and we did mess up then who cares because we aren’t accountable anyhow. Besides, no one comes out to vote anyhow.

    It is a sad state of affairs and with a change in leadership at the City we are in for a bumpy ride.

    • Randy Lipschitz

      Its a good thing you changed your mind about running for council; we need people who have some understanding about issues such as this; we dont need another Meed Ward in the hood.

  • Steve Robinson

    The green(red)belt has made it necessary for the progressive social engineers to intensify(overcrowd)Burlington, and they will be increasingly aggressive in their expropriation of private land in order to increase Burlington’s population density. If anyone thinks parks are off limits to high density re-engineering, then you’ve never read Aesop. What seems ridicules today will be a necessity tomorrow. After all, how else will the get the masses out of their cars, and into the empty buses?

  • Chester

    You do not have the whole story, and without the complete story, nobody can assert that something is wrong here, and that somehow the property owners have been ripped off or somehow abused by the city.

    Editor’s note: If you can enlighten us Chester – feel free to do so. Unless of course you are tight with the real estate developer crowd who know what’s happening before anyone else and you place your bets early in the game.

    • Randy Lipschitz

      No bets placed and no care about being tight with developer crowd, especially the local ones.

      But I can tell a lot by looking at the sketch you provided and what you have written so far.

      Enlightenment will come.

  • Mr.Bean

    Shame on city council and all involved. I am disgusted by the actions of my city. We need to vote these goons out!

  • Cliff

    This news is absolutely appalling.

    There is no way to put this without sounding discriminatory, but would Council have run so roughshod over a non-immigrant landowner?

    • Hans Jacobs

      Agreed – it doesn’t pass the smell test and it’s an embarrassment for Burlington’s citizens to have a fellow citizen treated this way.