Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 09, 2021
CASE NO(S).: LC180003
The Ontario Municipal Board (the “OMB”) and the Local Planning Appeal Tribunal (the “LPAT”) is continued under the name Ontario Land Tribunal (the “Tribunal”), and any reference to the Ontario Municipal Board or Board or Local Planning Appeal Tribunal in any publication of the Tribunal is deemed to be a reference to the Tribunal.
PROCEEDING COMMENCED UNDER subsection 26 (b) of the Expropriations Act. R.S.O. 1990, c. E.26 as amended.
Claimant: The Estate of Manuel Haralambus Respondent: Region Municipality of Halton Subject: Land Compensation Property Address/Description: Part Lot 12, Concession 2 Trafalgar Road Municipality: Regional Municipality of Halton OLT Case No.: LC180003 OLT File No.: LC180003 OLT Case Name: Estate of M. Haralambus v. Halton Region
Heard: June 24, 2021 by Telephone Conference Call
APPEARANCES:
Parties
The Estate of Manuel Haralambus (“Claimant”)
Counsel/Representative*
Raj Kehar* Sean Foran*
Regional Municipality of Halton (“Respondent”)
Piper Morley*
DECISION DELIVERED BY R.A. BECCAREA AND PROCEDURAL ORDER OF THE TRIBUNAL
BACKGROUND
1The Tribunal in its Decision issued on June 8, 2021 ordered that the Parties submit a draft Procedural Order prior to their Case Management Conference (“CMC”) which was held on June 24, 2021. The matter before the Tribunal is the cost claim of the Claimant, which has not been agreed upon or settled in whole or in part.
2The determination of the cost issue is the only remaining matter respecting this claim.
3The Tribunal further ordered in its June 8, 2021 that the draft Procedural Order was to set out a proposed hearing length, the issues for the hearing, the proposed dates for the exchange of any agreed upon materials prior to the Tribunal’s oral hearing on the merits of the Claimant’s cost claim.
4The Tribunal also asked that the Claimant’s Counsel take the lead in preparing the draft Procedural Order for the Tribunal’s consideration prior to this scheduled CMC, which Mr. Kehar did on June 23, 2021 after its consideration by Ms. Piper on behalf of the Region.
5Ms. Piper provided a clean copy of the Region’s alternative version of a draft Procedural Order also on June 23, 2021.
6Mr. Kehar advised the Case Coordinator, Ben Bath on June 23, 2021 that the Parties were not able to come to a consensus on the terms of the draft Procedural Order. He advised that the root area of dispute is when the Region will provide a response to the Claimant’s bill of costs which has been in its possession since October 2020.
7Mr. Kehar further advised that there has been zero progress towards a resolution of the cost issue and while open to discussions, they cannot commence until he knows what is at issue.
8Ms. Piper in response advised that the primary issue is not when the Region will provide a response, but is the manner in which the Tribunal’s cost assessment hearing should proceed in the normal course. Ms. Piper stated “that the Region’s position is that the Procedural Order (Halton’s clear version attached) should generally follow the procedure of a normal cost assessment”.
THE HEARING
9At the commencement of the Tribunal’s hearing, this member canvassed when this proposed 10-day cost hearing could likely commence, and was told that the earliest the matter could be heard was March 1-11, 2022.
10It was determined that the March 2022 hearing dates would not be accommodated because of the unavailability of one of the Counsel. At the conclusion of this hearing, Counsel were canvassed as to their availability and it has been determined that a hearing date of April 19 to April 29, 2022, can be accommodated by all concerned.
11The Tribunal in its subsequent order, has set the hearing to begin on Tuesday, April 19, 2022 at 10 am, ending on Friday April 29, 2022.
THE CLAIMANT’S SUGGESTED PROCEDURAL ORDER
12The draft Procedural Order provided by the Claimant’s Counsel seeks to have the issues at the hearing of the matter provided by July 9, 2021; the Respondent’s Response to the Cost Brief that was provided on or about October 1, 2020, to be served and filed by July 9, 2021; and for the Claimant’s to Reply by August 27, 2021.
13The draft Procedural Order also provided for Written Evidence to be delivered by both Parties by September 29, 2021; and a list of witnesses be delivered before September, 2021. A joint document book is to be provided no later than 10 days before the hearing.
THE RESPONDENT’S (REGION) SUGGESTED PROCEDURAL ORDER
14The Region’s draft Procedural Order acknowledges that it has received the Claimant’s Bill of Costs on or about October 1, 2020 and proposes in its Response to provide a summary of its position on reasonable costs no later than 85 days before the hearing date (now January 21, 2022).
15The Claimant’s reply is to be provided 65 days (now February 11, 2022) before the hearing date, and a joint document book be shared with the OLT Case Coordinator 30 days (now March 18, 2022) before the hearing.
16A Witness List of those the Claimant intends to call at the hearing is to be provided not later than 55 days (now February 22, 2022) before the hearing date.
17The Region proposes that all service and filing shall be electronic as are the written summaries of all oral submissions at the time of their presentations, whereas the Claimant proposes “written evidence”.
ARGUMENT
18The Region submits that an Issues List need not be identified, because the only issue in dispute is whether the costs are reasonable and incurred for the purpose of determining the compensation payable.
19The Claimant responds that the Region’s expressed concern as stated in the previous June 8, 2021 Tribunal’s decision that the Bill of Costs are “too high” and contain “duplication of efforts”, needs more specificity.
20Mr. Kehar urged the Tribunal to require the Region to indicate specifically which bills or portions thereof are at issue. He submitted that the Region surely can say what part of the bill of costs they are concerned with, especially since it had possession of it since October 2020.
21Setting a date 85 days from when the hearing date is to commence, for the Region to detail its specific concerns with the Claimant’s cost submissions, as suggested by the Region, Mr. Kehar said, is not only “kicking the can down the road”, but also provides limited or lack of opportunity to resolve or narrow the issues before hand.
22Ms. Piper submitted that requiring an earlier response, as opposed to the time she has proposed, will not get the detailed information that Mr. Kehar is asking for. Ms. Piper however, did not elaborate as to the reasons why she believed that.
ISSUES, ANALYSIS AND FINDINGS
23Putting into place a process whereby the Claimant’s costs can be determined has been complicated by a number of factors, including the puzzling delay in the region coming forward with its position on the cost claim. Significant delay has occurred and the Tribunal has not been able to determine why.
24Section 32 of the Expropriations Act, has particular wording that suggests that, in the absence of a Tribunal determination of the claim itself, it may not have the jurisdiction to fix the cost claims. Its wording suggests that referring the cost issue to an Assessment Officer may be the only avenue.
25Mr. Foran advised the Tribunal that as a result of COVID, the applicable Assessment Offices are closed, and even if open, the Tribunal was advised that there would be a significant delay in having the matter heard by an assessment officer. This was a significant reason as to why this Tribunal decided to have the matter heard by the OLT.
26The Tribunal chooses to adopt and follow the reasoning in the decision and order of then Member Makuch in Case no. LC140040, William R. Hume et al and the Ministry of Transportation. In that case, Member Makuch dealt with a situation similar to the one before this Tribunal where an order was made pursuant to section 32 (1) of the Expropriations Act, where no determination of the quarter of a claim for compensation was made by a Tribunal, as a result of a settlement reached and where the request was made by the Claimant on motion to fix its costs.
27The Tribunal finds further comfort in the provisions of section 17.1(6) of the Statutory Powers and Procedures Act; section 33(4) of the Local Planning Appeal Tribunal and section 20 of Bill 245, Schedule 6 of the Ontario Land Tribunal Act, 2021.
28The Tribunal advised both Counsel that it was leaning towards an earlier procedural process than what the Region has proposed. That was before it was determined that the earliest the Tribunal could accommodate a hearing date was in the year 2022 and not until April 2022.
29The Tribunal is persuaded by the submissions of Ms. Piper that requiring earlier dates may not accommodate the much needed detail of the Region’s response, despite her not particularizing it.
30There is in the Tribunal’s view an obligation to provide an efficient adjudication of this matter and to resolve the outstanding issue of costs as quickly and efficiently as possible.
31There is no justification in these circumstances of referring the matter to an assessment officer and accordingly the Tribunal will order that for purposes of determining the costs payable, that they be fixed by the Tribunal in accordance with section 32(1) of the Expropriations Act.
32As to the matter of how the matter is to proceed, the Tribunal has appended to this decision the Procedural Order to be used to determine the process.
33The Tribunal finds that with the existing and unusual circumstances that this is the most appropriate Procedural Order to be followed.
ORDER
34Accordingly, the Tribunal orders that:
The reasonable legal appraisal and other costs actually incurred by the Claimants for the planning related to the works for which their property was expropriated, mitigation efforts and for the purposes of determining compensation payable be fixed by the Tribunal in accordance with section 32(1) of the Expropriations Act.
The video hearing to determine and fix the reasonable costs payable to the Claimants by the Respondent will commence on Tuesday April 19, 2022 at 10 a.m. and end on April 29, 2022 from a location to be determined in consultation with the Case Coordinator and Counsel for the Parties.
The Procedural Order appended as Attachment 1, shall govern the required procedures and the determination of the cost payable leading up to and including the hearing.
35This Member is not seized.
“R.A. Beccarea”
R.A. BECCAREA 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.