# Ontario Land Tribunal
# Tribunal ontarien de l’aménagement du territoire
**ISSUE DATE:** August 18, 2021
**CASE NO(S).:** LC160037
**PROCEEDING COMMENCED UNDER** subsection 26(b) of the [Expropriations Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e26/latest/rso-1990-c-e26.html), R.S.O. 1990, c. E.26, as amended
**Claimant:** 1214621 Ontario Inc. (VIP Nite Club)
**Respondent:** City of Windsor
**Subject:** Land Compensation
**Property Address/Description:** 131 Riverside Drive West
**Municipality:** City of Windsor
**OLT Case No.:** LC160037
**OLT File No.:** LC160037
**OLT Case Name:** 1214621 Ontario Inc. (VIP Nite Club) v. Windsor (City)
**Heard:** August 10, 2021 by telephone conference call
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## APPEARANCES:
**Parties** | **Counsel**
--- | ---
1214621 Ontario Inc. (VIP Nite Club) ("Claimant") | D. Gatti
City of Windsor ("City") | P. Brode
## MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR ON AUGUST 10, 2021 AND ORDER OF THE TRIBUNAL
### INTRODUCTION
[1] This matter was originally set down for a 7 day hearing commencing on July 12, 2021 but was adjourned on consent.
[2] The Tribunal held a Case Management Conference to obtain a status update, to hear submissions with regard to setting a new hearing date and updating the Procedural Order ("PO").
### DECISION
[3] The Tribunal was advised that the parties were now able to proceed to a hearing and the parties advised that they each anticipated two expert witnesses and one (but possibly two) lay witnesses. On this basis they recommended a 6 day hearing to the Tribunal.
[4] The Tribunal set the 6 day hearing for Monday, March 7, 2022, commencing at 10 a.m. by a Virtual Hearing ("VH").
[5] Parties and participants are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:
[https://global.gotomeeting.com/join/431547173](https://global.gotomeeting.com/join/431547173)
Access Code: 431-547-173
[6] Parties 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](https://global.gotomeeting.com/install) or a web application is available: [https://app.gotomeeting.com/home.html](https://app.gotomeeting.com/home.html).
[7] Persons 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: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.
[8] Individuals 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 VH 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.
[9] The Tribunal gave directions for updating the PO to include the provision of the draft Hearing Plan to the Tribunal’s Case Coordinator at least 65 days in advance of the hearing date, and that all materials be provided to the Tribunal in both electronic and hard copy formats and at least 10 days prior to the hearing.
[10] The Tribunal tasked counsel for the Claimant with the responsibility to forthwith update the PO and submit it to the Tribunal on consent.
[11] Appended to this Decision is the updated PO as Attachment 1.
[12] There will be no further notice.
[13] I am not seized.
[14] Scheduling permitting, I may be available for case management purposes.
[15] This is the Order of the Tribunal.
"Blair S. Taylor"
BLAIR S. TAYLOR
MEMBER
Ontario Land Tribunal
Website: [www.olt.gov.on.ca](http://www.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.
---
## LC160037 – Attachment 1
# Ontario Land Tribunal
# Tribunal ontarien de l’aménagement du territoire
**PROCEEDING COMMENCED UNDER** subsection 26(b) of the [Expropriations Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-e26/latest/rso-1990-c-e26.html), R.S.O. 1990, c. E.26, as amended
**Claimant:** 1214621 Ontario Inc. (VIP Nite Club)
**Respondent:** City of Windsor
**Subject:** Land Compensation
**Property Address/Description:** 131 Riverside Drive West
**Municipality:** City of Windsor
**OLT Case No.:** LC160037
**OLT File No.:** LC160037
**OLT Case Name:** 1214621 Ontario Inc. (VIP Nite Club) v. Windsor (City)
### PROCEDURAL ORDER
1. The Tribunal may vary or add to these rules 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**
2. The hearing will begin on Monday, March 7, 2022 and be conducted by a virtual hearing, as follows:
GoTo Meeting: [https://global.gotomeeting.com/join/431547173](https://global.gotomeeting.com/join/431547173)
Audio-only telephone line: Toll-Free 1-888-299-1889 or +1 (647) 497-9373
Access Code: 431-547-173
3. The length of the hearing will be approximately 6 days. The length of the hearing may be shortened as issues are reordered as settlement is achieved.
4. The parties and participants identified at the Case Management Conference are set out in Attachment 1.
5. The Issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits and a party who asks for changes may have costs awarded against it.
6. The order of evidence shall be as set out in Attachment 3 to this 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 consent or by Order of the Tribunal.
7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.
**Requirements Before the Hearing**
8. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal, the other parties and to the municipal clerk a list of the witnesses and the order in which they will be called. This list must be delivered on or before December 31, 2021. 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 prepared to be qualified.
9. Expert witnesses in the same field shall have a meeting on or before February 14, 2022 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 and the municipal Clerk.
10. 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 section [12]. 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.
11. 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 section [12]. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in section [12].
12. On or before January 31, 2022, the parties shall provide copies of their witness and expert witness statements to the other parties and to the municipal Clerk.
13. On or before December 31, 2021, a participant shall provide copies of their written participant statement to the other parties. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
14. Parties may provide to all other parties and file with the Clerk a written response to any written evidence within seven (7) days after the evidence is received.
15. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal.
See Rule 10 of the Tribunal’s Rules of Practice and Procedure with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.
16. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.
17. The parties shall prepare and file a [hearing plan](https://olt.gov.on.ca/tribunals/lpat/lpat-process/hearing-plans/) with the Tribunal on or before October 31, 2021, 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.
18. Documents may be delivered by personal delivery, facsimile or registered or certified mail or email, or otherwise as the Tribunal may direct. The delivery of documents by fax and email shall be governed by the Tribunal’s Rules (Rule 7) on this subject. Material delivered by mail shall be deemed to have been received five business days after the date of registration or certification.
19. No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
20. All documents filed with the Tribunal shall be filed in both electronic, and hard copy form and at least 10 days in advance of the hearing.
This Member is not seized.
So orders the Tribunal.
---
### ATTACHMENT 1
**LIST OF PARTIES**
**PARTIES** | **COUNSEL**
--- | ---
1. 1214621 Ontario Inc. (VIP Nite Club) | Miller Canfield LLP<br>Suite 1300<br>100 Ouellette Avenue<br>Windsor, ON N9A 6T3<br><br>Dante Gatti<br>Email: [gatti@millercanfield.com](mailto:gatti@millercanfield.com)<br>Tel: 519.946.2129<br>Fax: 519.946.2133
2. City of Windsor | Corporation of The City of Windsor<br>Suite 201<br>400 City Hall Square East<br>Windsor, ON N9A 7K6<br><br>Patrick Brode<br>Email: [pbrode@citywindsor.ca](mailto:pbrode@citywindsor.ca)<br>Tel: 519.255.6100 (ext. 6377)<br>Fax: 519.255.6933
---
### ATTACHMENT 2
**ISSUE LIST**
A. The primary issue to be determined is the amount of compensation, if any, that the Claimant is entitled to receive.
**Sub Issue 1**
Whether or not the Claimant had, and is entitled to receive compensation for, a Market Advantage based upon the Commercial Lease that the Claimant was a party to, as of the effective date.
Elaboration of Sub issue 1. As of the Effective Date, the Claimant was a party to a commercial lease, with a remaining term of 153 months (including renewals). The Claimant takes the position that its lease called for the payment of rent at rates which were below fair market rents with the Claimant therefore enjoying a "Market Advantage", which the Claimant seeks compensation for.
**Sub Issue 2**
Whether or not the Claimant entitlement, if any to receive compensation for a Market Advantage, should be affected by, or reduced by, any accounts payable that the Claimant had, as of the effective date.
Elaboration of Sub Issue 2. The Respondent takes the position that as of the Effective Date, the Claimant was significantly in arrears of its rent to such a degree, that the Claimant should not receive any compensation for any leasehold interest that the Claimant may have held as of the Effective Date.
---
### ATTACHMENT 3
**ORDER OF EVIDENCE**
1. 1214621 Ontario Inc. (VIP Nite Club)
2. City of Windsor
3. Reply of 1214621 Ontario Inc. (VIP Nite Club)
4.
---
### Attachment to Sample Procedural Order
**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](https://olt.gov.on.ca/about-olt/law-policy/) 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.
minicounsel