Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
August 10, 2021
CASE NO(S).:
LC100042
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant:
Har-Jo Management Services Canada Ltd.
Respondent:
Regional Municipality of York
Subject:
Land Compensation
Property Address/ Description:
390 Davis Drive & 665 Davis Drive
Municipality:
Town of Newmarket
LPAT Case No.:
LC100042
LPAT File No.:
LC100042
LPAT Case Name:
Har-Jo Management Services Canada Ltd. v. York (Region)
Heard:
July 15, 2021 by telephone conference call
APPEARANCES:
Parties
Counsel
Har-Jo Management Services Canada Ltd.
Ava Kanner
The Regional Municipality of York
Frank Sperduti and Simon Fung
MEMORANDUM OF ORAL DECISION DELIVERED BY R.G.M. MAKUCH ON JULY 15, 2021 AND ORDER OF THE TRIBUNAL
1This claim relates to an expropriation of lands by the Regional Municipality of York (“Region”) in 2009 for the construction of the Davis Drive VIVA Next – Bus Rapid Transit Project. The claim has not proceeded forward in the ordinary course due to certain matters being held in abeyance for periods of time with dates being pushed back.
2The Region has expressed some concerns with the slow pace of this claim given that there were some 500 takings associated with this construction project and that the adjudication of this claim is one of only four remaining to be finalized.
3While the Region acknowledges that it has contributed to some of the delays, it is specifically concerned that the Claimants have refused to even consider acceptance of the s. 25 offer made to them and the associated 6% interest rate, which continues to accrue.
4The Claimants are an older couple who have had some serious health issues even before the COVID 19 pandemic occurred in March 2020. This has caused some difficulties with the scheduling of Examinations for Discovery because of the restrictions associated with the pandemic and the Claimants inability to navigate in the virtual world of the internet. The Region has now very recently offered to provide the Claimants with a computer and an internet connection together with technical assistance at no cost to them in order to move forward with the adjudication of their claim.
5On that basis, counsel have agreed to complete Examinations for Discovery not later than November 1, 2021.
6The Tribunal finds that the Region’s concerns with the accruing of interest on the amount of the s. 25 offer, which has not been accepted are valid and hereby orders that interest on the amount of the s. 25 offer will stop accruing as of today’s date whether or not it is accepted by the Claimants.
7Counsel have indicated that they are interested in Tribunal assisted mediation and will continue to have discussions as to the timing of such as whether this can occur prior to the completion of Examinations for Discovery or thereafter.
8The hearing is scheduled to commence on Monday, June 13, 2022 at 10 a.m.
9Parties and participants 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/296537493
Access code: 296-537-493
10Parties and participants 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
11Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: (647) 497-9373 or Toll Free 1 888 299 1889. The access code is 296-537-493.
12Individuals 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.
13Ten days have been set aside.
14The proceeding will be governed by Attachment 1 hereto.
15All dates set herein are peremptory.
16There will not be any further notice.
17I am not seized but will remain available for case management purposes.
18It is so ordered.
“R.G.M. Makuch”
R.G.M. MAKUCH
VICE-CHAIR
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.
OLT File No. LC100042
ONTARIO LAND TRIBUNAL
IN THE MATTER OF the Expropriations Act, R.S.O. 1990, c. E.26 (the “Act”); and
IN THE MATTER OF an Arbitration
B E T W E E N:
HAR JO MANAGEMENT SERVICES CANADA LTD.
Claimant
- and -
THE REGIONAL MUNICIPALITY OF YORK
Respondent
PROCEDURAL ORDER
This is an Order of the Ontario Land Tribunal (“OLT”) which sets the Hearing schedule, the Pre-Hearing requirements and provides directions for the organization of the Hearing.
The OLT Orders that:
The OLT may vary or add to this Order at any time, either on request or as it sees fit. It may alter this Order by an oral ruling, or by another written Order.
ORGANIZATION OF THE HEARING
The video Hearing will begin on June 13, 2022 at 10:00 a.m. No further notice shall be required.
The length of the Hearing will be 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.
Any person who intends to participate in the Hearing, including parties, counsel and witnesses, is expected to review the OLT’s Video Hearing Guide, available on the OLT website.
ISSUES
- The issues at the Hearing shall be those set out in the pleadings filed, including amendments.
REQUIREMENTS BEFORE THE HEARING
Pleadings
The Claimant served and filed an Amended Notice of Arbitration and Statement of Claim on January 21, 2011.
The Respondent served and filed a Reply on March 24, 2020.
The Claimant served and filed a Fresh as Amended Notice of Arbitration and Statement of Claim on July 30, 2020.
The Respondent served and filed a Fresh as Amended Reply on September 18, 2020.
Any further amendments to the pleadings shall be made in accordance with the Rules of the OLT.
Documentary and Oral Discoveries
The Parties agree that Affidavits of Documents have been exchanged.
Examinations for Discovery and/or replies to written interrogatories will be completed on or before October 31, 2021.
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 December 31, 2021.
Any Motion(s) arising out of the discovery process are to be heard by a single Member of OLT on or before January 31, 2022. The OLT Rules of Practice and Procedure apply in relation to any Motion(s) arising out of the discovery process.
Mediation
- The parties agree to attend and participate in a mediation pursuant to Rule 18 of the OLT Rules of Practice and Procedure which shall take place on or before February 28, 2022.
Expert Reports and Witness Statements
“Written Evidence” includes all written material, reports, studies, documents, letters and statements which a Party intends to present and rely on 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.
“Expert Report” means a document prepared by an expert witness, consisting of an outline of his or her qualifications, an outline of the issues he or she will address in oral evidence, a description of the expert witness’ opinions on those issues, and a list of reports or studies that the expert witness will rely on at the Hearing.
“Visual Evidence” includes photographs, maps, videos, models, and overlays which a Party intends to present as evidence at the Hearing.
“Witness Statement” is a short written outline of a lay witness’ background, experience and interest in the matter; a list of the issues which he or she will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the Hearing.
An “Expert Witness Statement” should include his or her (1) name and address, (2) qualifications including curriculum vitae and area of expertise in which the witness is proposed to be qualified, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the Hearing.
An Expert Report, Expert Witness Statement, or Witness Statement, as appropriate, shall be served in respect of all witnesses.
Expert Reports, Expert Witness Statements and Witness Statements are to be served on or before sixty (60) days prior to the Hearing. Responding Expert Reports, Expert Witness Statements and Witness Statements are to be served on or before thirty (30) days prior to the Hearing.
Expert witnesses in the same field shall have a meeting on or before December 10, 2021 to try to resolve or reduce the issues for the hearing. The experts must prepare a list of agreed facts and the remaining issues to be addressed at the Hearing and provide this list to all of the parties.
On or before thirty (30) days prior to the Hearing, the Parties shall provide copies of their Visual Evidence to all Parties or, alternatively, shall arrange for a viewing of visual evidence that cannot reasonably be transmitted.
Unless the OLT orders otherwise, no expert shall give oral evidence at the Hearing without first having served and filed an Expert Report and/or Expert Witness Statement.
If a Party intends to call a lay person as a witness, it shall serve on all the other Party and file with the OLT a Witness Statement within the timelines prescribed herein.
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 OLT on or before fifteen (15) days prior to the Hearing that the Expert Report, Expert Witness Statement, and/or Witness Statement is not part of their record.
Further and/or Amended Evidence
Further Written Evidence, Expert Reports, Expert Witness Statements, and Witness Statements may be served and filed only with leave of the OLT.
Amendments to Expert Reports, Expert Witness Statements, and Witness Statements will be permitted only with leave of the OLT and with notice to all Parties.
List of Witnesses
A Party who intends to call witnesses, whether by summons or not, shall provide to the OLT and the other Parties a list of the witnesses and the order in which they intend to call them on or before ninety (90) days prior to the Hearing.
Counsel shall use best efforts to ensure that the witness who will follow the witness who is testifying shall be available to take the stand immediately upon the completion of the testimony of the prior witness.
Presentation of Evidence
- The order of presentation of evidence shall be:
a. case for the Claimant;
b. case for the Respondent; and
c. reply by the Claimant.
- Reply evidence shall not include evidence which was or should have been led in chief. The OLT 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 consent or by Order of the OLT.
Notice to Admit
- 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.
Joint Document Book
- The Parties shall cooperate to prepare a Joint Document Book which shall be shared with the OLT case co-ordinator on or before June 3, 2022.
General Provisions
Documents may be delivered by personal delivery, e-mail, facsimile, courier or otherwise as the OLT may direct. For documents delivered by e-mail, a hard copy shall also be delivered, if requested.
The parties shall prepare and file a Hearing Plan with the OLT on or before June 6, 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 OLT may, at its discretion, change or alter the Hearing Plan at any time in the course of the Hearing.
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 OLT and the other parties if it is introduced as evidence at the Hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before June 8, 2022.
All filings shall be submitted electronically and in hard copy. 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 OLT. The delivery of documents by email shall be governed by the Rule 7.
A Party may contact the OLT to request a teleconference or attendance in the event of disputes concerning the application, interpretation or contents of this Order.
The OLT may be spoken to regarding any other dates required from the OLT for effective case management of this matter.
No adjournments or delays will be granted before or during the Hearing except for serious hardship or illness. OLT Rule 17 applies to such requests.
Attachment 1 hereto shall form part of this Order.
This Member is not seized. So Orders the OLT
Name of Member:
Date:
TRIBUNAL REGISTRAR
Attachment 1
List of Parties
Har Jo Management Services Canada Ltd.
Ava Kanner
Davies Howe LLP The Tenth Floor
425 Adelaide Street West
Toronto, Ontario M5V 3C1 Email: ava@davieshowe.com
Tel: (416) 977-7088
Fax: (416) 977-8931
The Regional Municipality of York
Frank Sperduti
Simon Fung Borden Ladner Gervais LLP
Bay Adelaide Centre, East Tower 22 Adelaide Street West, Suite 3400 Toronto, Ontario M5H 4E3 Email: fsperduti@blg.com
Email: sfung@blg.com Tel: (416) 367-6243
Fax: (416) 367-6749