Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: October 20, 2021

CASE NO(S).: LC150014

PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant: Scarborough Chinese Baptist Church

Respondent: City of Toronto

Subject: Land Compensation

Property Address/ Description: 3223 Kennedy Road

Municipality: City of Toronto

OLT Case No.: LC150014

OLT File No.: LC150014

OLT Case Name: Scarborough Chinese Baptist Church v. Toronto (City)

Heard: October 13, 2021 by Video Hearing

APPEARANCES:

Parties Scarborough Chinese Baptist Church

Counsel M. Flowers

Parties City of Toronto

Counsel B. O’Callaghan

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON OCTOBER 13, 2021 AND ORDER OF THE TRIBUNAL

1This Case Management Conference (“CMC”) was held on October 13, 2021, by Video Hearing (“VH”).

2The only issue at the VH was the Procedural Order (“PO”) that has been discussed by the Parties. Both Parties wish to have a hearing no earlier than June of 2022 and have largely agreed on most aspects of the PO.

3At the request of counsel for the Parties, the Tribunal enquired as to the available hearing dates and advised all counsel that the hearing of this case is now set for a period of 10 days as described in paragraph [5] below.

4The Parties’ counsel agreed to make efforts to reach a consensus on the dates for all other matters prior to the hearing of the case. Subsequent to the VH, counsel for the Parties submitted a revised draft PO for review by the Tribunal.

5The hearing to proceed by video will take place on Monday, July 4, 2022, commencing at 10 a.m. for ten days.

6Statutory parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

https://global.gotomeeting.com/join/209750333 Access code: 209-750-333

7Parties are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html

8Persons who experience technical difficulties accessing the GoToMeeting application can connect to the event by calling into an audio-only telephone line: +1 (647) 497-9373 or (Toll Free) 1 (888) 299-1889. The access code is 209-750-333.

9Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

10This hearing shall be governed by the Procedural Order set out in Attachment 1 hereto.

“William R. Middleton”

WILLIAM R. MIDDLETON

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1

OLT File No. LC150014

ONTARIO LAND 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:

SCARBOROUGH CHINESE BAPTIST CHURCH

Claimant

• and -

CITY OF TORONTO

Respondent

PROCEDURAL ORDER

This is an Order of the Ontario Land Tribunal (the “Tribunal”) which sets the Hearing schedule, the Pre-Hearing requirements and provides directions for the organization of the Hearing.

The Tribunal Orders that:

1. The Tribunal may vary or add to the directions in this Procedural Order at any time by an oral ruling or by another written order, either on the parties’ request or its own motion.

ORGANIZATION OF THE HEARING

2. The Video Hearing will begin on Monday, July 4, 2022 at 10:00 a.m. https://global.gotomeeting.com/join/209750333. No further notice shall be required.

3. The parties’ initial estimation for the length of the Hearing is approximately ten (10) days. The parties are expected to cooperate to reduce the length of the Hearing by eliminating redundant evidence and attempting to reach settlements on issues, where possible.

4. The parties identified at the case management conference held on October 13, 2021 are set out in Attachment 1.

5. The order of evidence shall be as set out in paragraph 30 of this Procedural Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

6. Any person who intends to participate in the Hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

ISSUES

7. The issues at the Hearing shall be those set out in the pleadings filed, including amendments.

REQUIREMENTS BEFORE THE HEARING

Pleadings

8. The Claimant filed a Notice of Arbitration and Statement of Claim on August 10, 2015.

9. The Respondent served a Reply on August 27, 2015.

10. The Claimant served and filed a Fresh as Amended Notice of Arbitration and Amended Statement of Claim on October 13, 2021.

11. The Respondent will serve and file an Amended Reply, if any, by November 2, 2021.

12. Any further amendments to the pleadings shall be made in accordance with the Rules of the Tribunal.

Documentary and Oral Discoveries

13. The Parties agree that Affidavits of Documents will be exchanged on or before Friday, January 14, 2022.

14. Examinations for Discovery and/or replies to written interrogatories will be completed on or before Friday, February 25, 2022.

15. Answers to any undertakings provided and/or re-examination or further written interrogatories arising out of answers and/or undertakings shall be completed on or before Friday, March 25, 2022.

16. The Tribunal orders that the Tribunal’s Rules of Practice and Procedure apply in relation to any Motion(s) arising out of the discovery process.

List of Witnesses

17. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they intend to call them on or before Monday, April 4, 2022. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is proposed to be qualified.

Expert Reports and Witness Statements

18. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the Hearing. Copies of this must be provided as in paragraph 34 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

19. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 34 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 34 below.

20. If a party intends to call a lay person as a witness, it shall serve on the other party and file with the Tribunal a Witness Statement within the timelines prescribed herein.

21. On or before Monday, April 25, 2022 Witness Statements, if any, and Expert Witness Statements are to be exchanged and provided to the OLT case Co-Ordinator and in accordance with paragraph 34 below.

22. Expert witnesses in the same field shall have a meeting on or before Friday, May 13, 2022 to try to resolve or reduce the issues for the Hearing. Following the experts’ meeting the parties must prepare a Statement of Agreed Facts and Issues outlining the remaining issues to be addressed at the Hearing and file it with the OLT case Co-Ordinator on or before Monday, June 13, 2022.

23. On or before Monday, June 6, 2022, Reply Expert Reports and/or Witness Statements, if any, are to be exchanged and provided to the OLT case Co-Ordinator in accordance with paragraph 34 below.

24. On or before Friday, June 24, 2022, the parties shall provide copies of their Visual Evidence to all Parties in accordance with paragraph 34 below or, alternatively, shall arrange for a viewing of visual evidence that cannot reasonably be transmitted.

25. A party who serves and files an Expert Report, Expert Witness Statement, and/or Witness Statement to the other party must have the witness attend the Hearing to give oral evidence, unless the party notifies the other party and the Tribunal on or before Friday, June 17, 2022 that the Expert Report, Expert Witness Statement, and/or Witness Statement is not part of their record.

Further and/or Amended Evidence

26. Further Written Evidence, Expert Reports, Expert Witness Statements, and Witness Statements may be served and filed only with leave of the Tribunal.

27. Parties wishing to secure leave to call more than three expert witnesses in any one specialized field shall seek leave from the Tribunal on or before the commencement of the Hearing.

28. Amendments to Expert Reports, Expert Witness Statements, and Witness Statements will be permitted only with leave of the Tribunal and with notice to all Parties.

Joint Document Book

29. The Parties shall cooperate to prepare a Joint Document Book which shall be shared with the OLT case Co-Ordinator no later than Friday, June 24, 2022.

Presentation of Evidence

30. The order of presentation of evidence shall be:

31. case for the Claimant;

32. case for the Respondent; and

33. reply by the Claimant.

Cross-Examinations

31. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the Hearing. These documents are to be forwarded to the parties and the OLT case Co-Ordinator on or before Wednesday, June 29, 2022, but does not preclude other cross-examination documents from being introduced during the Hearing.

Notice to Admit

32. Any party choosing to exercise the right to serve a Request to Admit facts or documents pursuant to Rule 51 of the Rules of Civil Procedure shall serve such request in accordance with the Rules of Civil Procedure.

Hearing Plan

33. The parties shall prepare and file a Hearing Plan with the Tribunal on or before Monday, June 13, 2022 with a proposed schedule for the Hearing that identifies, as a minimum, the parties participating in the Hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the Hearing proceeds in an efficient manner and in accordance with the Hearing plan. The Tribunal may, at its discretion, change or alter the Hearing plan at any time in the course of the Hearing.

General Provisions

34. All filings with the Tribunal shall be submitted electronically and in hard copy, unless otherwise directed by the Tribunal. Electronic copies may be filed by email, an electronic file sharing service for documents that exceed 10MB in size, or as otherwise directed by the Tribunal. The delivery of documents by email shall be governed by the Rule 7.

35. A party wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties at least 15 days before the Tribunal hears the motion.

36. A party may contact the Tribunal, with notice to the other party, to request a teleconference or attendance in the event of disputes concerning the application, interpretation or contents of this Order.

37. The Tribunal may be spoken to regarding any other dates required from the Tribunal for effective case management of this matter.

38. No adjournments or delays will be granted before or during the Hearing except for serious hardship or illness. Tribunal Rule 17 applies to such requests.

39. Attachments 1 and 2 hereto shall form part of this Order.

This Member is [not] seized.

So Orders the Tribunal

Attachment 1

List of Parties

Scarborough Chinese Baptist Church Mark Flowers Davies Howe LLP The Tenth Floor 425 Adelaide Street West Toronto, Ontario M5V 3C1 Email: markf@davieshowe.com Tel: (416) 263-4513 Fax: (416) 977-8931

City of Toronto Brendan O’Callaghan City of Toronto, Legal Services Division 26th Floor, Metro Hall 55 John Street Toronto, Ontario M5V 3C6 Email: brendan.OCallaghan@toronto.ca Tel: 416-392-7786 Fax: 416-397-4420

Attachment 2

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the Hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the Hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the Hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a Hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a Hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the Hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the Hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the Hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss; and a list of reports or materials that the witness will rely on at the Hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the Hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the Hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.