Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: December 07, 2021
CASE NO(S).: LC180019
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: The Healthy Butcher Inc.
Respondent: Metrolinx
Subject: Land Compensation
Property Address/ Description: 298 Eglinton Ave W
Municipality: City of Toronto
OLT Case No.: LC180019
OLT File No.: LC180019
OLT Case Name: The Healthy Butcher Inc. v. Toronto (City), Metrolinx
Heard: December 2, 2021 by telephone conference call
APPEARANCES:
Parties
Counsel
The Healthy Butcher Inc. (“Claimant”)
A. Burton
Metrolinx
C. Higgs
MEMORANDUM OF ORAL DECISION BY BLAIR S. TAYLOR ON DECEMBER 2, 2021 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Metrolinx requested an urgent Case Management Conference (“CMC”) as it submitted that the Claimant had failed to comply with the Tribunal’s Procedural Order and that the Claimant also had additional documents that it intended to produce.
2For the reasons set out below, the Tribunal directed: full production of the Claimant’s additional documents on or before Friday, December 17, 2021; that Metrolinx would have until Monday, January 3, 2022 to review that production; reserved any further consideration until the next CMC already set for Monday, January 10, 2022; and ordered that costs for this attendance were reserved to the Member hearing the matter on its merits.
BACKGROUND AND CONTEXT
3The matter before the Tribunal arises from a 2018 claim for injurious affection (“non-taking”) as part of the overall Eglinton Crosstown LRT project, in the amount of $500,000.00 for business damages, and a sum to be determined in the future as a result of ongoing construction.
4The Tribunal held its first CMC on June 10, 2020 at which time the Decision dated June 19, 2020 states the following:
Construction is still ongoing respecting the LRT project, however, Mr. Burton advised that the Claimant sold its business on April 30, 2019, and the losses it is claiming have crystallized as of that date.
5The Tribunal’s second CMC was held on April 16, 2021 and its Decision dated May 5, 2021 set down a motion date arising from discoveries that had already taken place, and also attached the Tribunal’s Procedural Order (“PO”).
6Some key dates from the PO include:
a. Further productions from the motion by September 20, 2021
b. Examinations for discovery arising from the productions to be exchanged by September 28, 2021;
c. Responses to examinations for discovery to be provided by October 13, 2021;
d. All expert reports and witness statements to be served by November 3, 2021;
e. All reply expert reports and reply witness statements to be served by November 22, 2021.
f. A status hearing set for Monday, January 10, 2022; and
g. An 8 day hearing set to commence on Tuesday, March 1, 2022.
7No Witness Statements or reports have been exchanged and technically both parties are in breach of the Tribunal’s PO.
8Counsel for Metrolinx advised the Tribunal that its expert reports and witness statements had been signed off and are ready to be exchanged, but were withheld as there were none forthcoming from the Claimant.
9Moreover, counsel for Metrolinx submitted that by email dated November 11, 2021 counsel for the Claimant communicated “… that there would be a need for further production in order to bring the losses up to date…”, and suggested a mutual further productions date and moving the exchange of expert reports to Friday, December 17, 2021.
10The November 11, 2021 disclosure of “…bringing the losses up to date…”, and further production came as a surprise to Metrolinx, as being contrary to what the Claimant had submitted at the first CMC and definitely came after discovery and post the motion for production.
11Counsel for the Claimant argued that while he had made that statement at the first CMC, that the Notice of Arbitration and the Statement of Claim had not been amended and it provided for ongoing losses, and that the production to be made would deal with updating the losses as a result of the ongoing construction.
12For Metrolinx to be able to appropriately respond, first it has to know what is in the production.
13Thus, the Tribunal directed that the Claimant shall provide its desired production on or before Friday, December 17, 2021.
14In view of the forthcoming holiday season, the Tribunal directed that Metrolinx shall have time to review the production until Monday, January 3, 2022.
15The Tribunal then adjourned the matter to be taken up at the CMC already set to proceed as a telephone conference call for Monday, January 10, 2022 at 9 a.m, where it will hear status updates from the parties, and make any necessary determinations with regard to the production, further examinations, etc.
16Individual(s) are directed to call 416-212-8012 or Toll Free 1-866-633-0848 on the assigned date at the correct time. When prompted, enter the code 4779874# to be connected to the call. It is the responsibility of the person(s) participating in the call to ensure that they are properly connected to the call and at the correct time. Questions prior to the call may be directed to the Tribunal’s Case Coordinator having carriage of this case.
17While Metrolinx requested costs thrown away, the Tribunal will not order such at this time, the Tribunal reserved costs to the Member hearing this matter on its merits.
18There will be no further notice.
19I am not seized of this matter.
20Scheduling permitting, I may be available for case management purposes.
21This is the Order of the Tribunal.
“Blair S. Taylor”
BLAIR S. TAYLOR
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.