Motek Cultural Initiative v. Metrolinx, 2022 CanLII 122383

ISSUE DATE: December 19, 2022

CASE NO.: OLT-22-002362

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

Claimant: Motek Cultural Initiative

Respondent: Metrolinx

Subject: Land Compensation

Property Address: 1 Atlantic Avenue

Municipality: City of Toronto

OLT Case No.: OLT-21-002362

OLT Lead Case No.: OLT-21-002362

OLT Case Name: Motek Cultural Initiative v. Metrolinx

BEFORE: BLAIR S. TAYLOR Friday, the 16th VICE-CHAIR Day of December 2022

THESE MATTERS having come before the Tribunal for a Case Management Conference on December 8, 2022;

AND THE TRIBUNAL having received the requested Procedural Order, on consent;

THE TRIBUNAL ORDERS that the Procedural Order attached hereto as Schedule “1” is in full force and effect.

“Euken Lui”

EUKEN LUI ACTING REGISTRAR

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.

SCHEDULE 1

PROCEDURAL ORDER

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 June 12, 2023 at 10:00 a.m. at:

https://global.gotomeeting.com/join/692665589

Access code: 692-665-589

3. The parties’ initial estimation for the length of the hearing is five (5) 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 and participants identified at the case management conference are set out in Attachment 1 (see the sample procedural order for the meaning of these terms).

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 the parties’ consent, subject to the Tribunal’s approval, 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.

8. 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.

Requirements Before the Hearing

9. The Claimant served and filed a Notice of Arbitration and Statement of Claim on or before February 16, 2022.

10. The Respondent, Metrolinx, served and filed its Reply on or about March 11, 2022.

11. The parties shall exchange their respective Affidavits of Documents and Productions by Wednesday, January 11, 2023.

12. Examinations for Discovery of the representative of each party shall be completed on or before Friday, February 24, 2023.

13. Each party shall answer their respective undertakings arising from examinations for discovery on or before Friday, March 31, 2023.

14. Any motions arising from either documentary discovery or the Examination for Discovery and answers to undertakings, if necessary, shall be heard on April 28, 2023 at 10:00 am and will be held by way of videoconference or at a mutually convenient location at the direction of the Tribunal. In the event that the parties do not require any such motion, they shall endeavour to notify the Tribunal, on consent, at least seven (7) days prior to the scheduled date for the motion or as soon as possible thereafter.

15. Further answers to undertakings, questions taken under advisement, and/or refusals, further examinations for discovery, and/or further productions arising from a motion are to be answered, held, and/or provided within thirty (30) days of the discovery motion before the Tribunal.

16. 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 will be called. This list must be delivered on or before fifty-five (55) days prior to the start of the hearing and in accordance with paragraph 29 below. 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.

17. Expert witnesses in the same field shall have a meeting on or before May 31, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before June 2, 2023.

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 20 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 20 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 13 below.

20. On or before May 5, 2023, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 29 below.

21. On or before May 5, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 29 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

22. On or before fifty-five (55) days prior to the start of the hearing the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

23. On or before June 2, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 29 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

24. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before May 26, 2023 and in accordance with paragraph 29 below.

25. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator, in both electronic and hard copy, on or before ten days prior to the hearing.

26. 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 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.

27. 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.

28. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before fifty-five (55) days prior to the start of the hearing 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.

29. All filings to the Tribunal 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 Tribunal. The delivery of documents by email shall be governed by the Rule 7.

30. 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.

This Member is not seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

ATTACHMENT 1 – PARTICIPANT LIST

Party

Party Status

Counsel / Representative

Motek Cultural Initiative

Claimant

Rayman Harris LLP 250 The Esplanade Suite 202 Toronto, Ontario M5A 1J2 Conner Harris (LSO #66645E) T: 416.597.5422 conner@rbllp.com Leah Cummings (LSO #78980W) T: 437.222.9004 leah@rbllp.com

Metrolinx

Respondent

M&H LLP 61A Jarvis Street, Suite 200 Toronto, ON M5C 2H2 Christel Higgs (LSO #53408T) Tel: 416.947.6701 christel@mhlawyers.ca Aisling Flarity (LSO #65500B) Tel: 416.947.6700 x204 aisling@mhlawyers.ca

ATTACHMENT 2 – ISSUES LIST

OLT File No: OLT-22-002362

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:

MOTEK CULTURAL INITIATIVE

Claimant

• and -

METROLINX

Respondent

ISSUES LIST

1. The issues shall be those as set out in the pleadings delivered by the Parties.

ATTACHMENT 3 – ORDER OF EVIDENCE

1. Claimant’s evidence in-chief

2. Claimant’s evidence in cross-examination

3. Respondent’s evidence in-chief

4. Respondent’s evidence in cross-examination