Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 25, 2022
CASE NO(S).: LC190013
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: 1188042 Ontario Inc. and Central Meat Market (Kitchener) Limited
Respondent: Regional Municipality of Waterloo
Subject: Land Compensation
Property Address/Description: 760 King Street West
Municipality: Regional Municipality of Waterloo
OLT Case No.: LC190013
OLT File No.: LC190013
OLT Case Name: 1188042 Ontario Inc. and Central Meet Market (Kitchener) Limited v. Waterloo (Regional Municipality)
Heard: February 11, 2022 by video hearing
APPEARANCES:
Parties
Counsel
1188042 Ontario Inc. and Central Meat Market (Kitchener) Limited (the “Claimant”)
Greg Murdoch
Regional Municipality of Waterloo (the “Region”)
Sean Foran Alyssa Armstrong
DECISION DELIVERED BY T. PREVEDEL AND ORDER OF THE TRIBUNAL
INTRODUCTION
1The Region took part of a portion of property owned by 1188042 Ontario Inc. on 760 King Street West in Kitchener to facilitate its light rail transit project (the “LRT project”). The Claimant, Central Meat Market (Kitchener) Limited, operates a grocery store and claims that the Region’s LRT project caused losses to its business because of reduced vehicle traffic on King Street. In addition to claiming compensation for the market value of the portion of the property taken by the Region, the corporate owner also claims disturbance damages and injurious affection for the losses caused by the Region’s construction of the LRT project.
2For the purposes of this Motion, although the two Claimants each have distinct Claims before the Tribunal, the subject matter of the Motion can be addressed collectively for both Claimants and they will accordingly be referred to as the Claimants.
3The Tribunal conducted a Case Management Conference (“CMC”) on October 5, 2021 by video hearing, to discuss a draft Procedural Order (“PO”) and a timetable for the procedural steps in this proceeding.
4The Hearing of the Merits for this Appeal has been scheduled for November 7, 2022 for a total of nine days. The Procedural Order, which is still in draft form, outlines key dates for deliverables and exchange of documentation in advance of the Hearing.
5Examinations for Discovery took place on February 4-5, 2020.
6This is the Decision resulting from a Hearing held by video conference on February 11, 2022 regarding motions brought by the Claimants against the Regional Municipality of Waterloo (the “Region”) and cross-motions by the Region against the Claimants.
7The Tribunal was provided with Motion Records and Responding Motion Records as well as Factums from both Parties in advance of the Motion Hearing.
8The motion records and responding motion records were supported by affidavits. Each Party also provided the Tribunal with a Book of Authorities.
9The motions referenced a number of Rules of Practice and Procedure of the Ontario Land Tribunal, namely 9.2 and 26.16. Also referenced was 25.1 of the Statutory Power and Procedures Act and Rules 29.2.03(1) and 31.06(3) of the Rules of Civil Procedure.
10In the lead-up to the Motion Hearing, counsel for both Parties advised the Tribunal that they were able to resolve some of the queries, thus reducing the outstanding matters to be dealt with at this Hearing.
REGION’S MOTION
11The Region submitted an Amended Motion Record to the Tribunal dated January 27, 2022 requesting that the Tribunal Order the Claimant to answer a number of questions posed to Mike Williamson, a witness for the Claimant, during the examination for discovery held on February 4, 2020.
12During the course of the Motion Hearing, counsel for the Region made submissions to the Tribunal regarding the Outstanding Undertakings Nos. 14, 34, 37, 49 and 50 given during the examination of Mr. Williamson held on February 4, 2020, as identified in Schedule “C” to the Region’s Motion Record.
13Counsel also made submissions regarding questions under Advisement Nos. 1, 2, 3, 4 and 5 during the same examination of Mr. Williamson.
Undertaking No. 14
14This undertaking was for the Claimant to advise when the scheduled restoration of two-way traffic had occurred and to advise what evidence there is in support of that date.
15The Claimant did respond by email dated November 25, 2020 that construction had been completed in June 2015.
16The response has been acknowledged by the Region, and the only remaining request is to be advised in writing what evidence there is in support of that date.
Undertaking No. 34
17Mr. Williamson was to review and refresh his recollection as to when the failure to communicate referred to in paragraph 40(b) of the Statement of Claim happened and if there are documents to support the recollection.
18This Undertaking has been answered by Mr. Williamson on January 30, 2022.
Undertaking No. 37
19The Claimant was to advise of the scheduled closure versus the actual closure for the intersections referred to in paragraph 40(e) of the Statement of Claim.
20Counsel for the Claimant agrees that this is still an outstanding undertaking.
Undertakings No. 49 and 50
21The Claimant undertook to produce financial statements for 2020 and 2021.
22These Undertakings were provided by Mr. Williamson on January 30, 2022.
Under Advisement No. 1
23The Claimant was requested to advise what applicable standards are being referred to in paragraph 41 of the Statement of Claim.
24The Claimant has agreed that the Region is not liable in negligence, and since that aspect of the claim has been withdrawn by the Claimant, an answer to that question is no longer required.
Under Advisement No. 2
25The Claimant was requested to advise if the report from City Appraisal Management is the report that forms the basis of the claim for $86,000 in market value at this point.
26Paragraph 37 of the Statement of Claim claims $86,000 for the market value of the expropriated lands, less $26,100 in interim compensation paid by the Region pursuant to Section 25 of the Expropriations Act. No documentation was provided by the Claimant to support this market value amount.
27Counsel for the Claimant submitted that they have not yet decided whether City Appraisal Management will be called to give testimony at the Hearing. They are not obligated to disclose this until June 30, 2022 as per the draft Procedural Order.
28Counsel for the Claimant argued that it is premature at this time to order production of the Appraisal report if the Claimant does not intend to call City Appraisal Management as an expert witness.
29Counsel for the Region consented to the points made above but stated that the Region is not asking for production of the document itself, just confirmation from the Claimant as to where the appraised value came from.
30The Tribunal finds that the production of the appraisal report is not required at this time but, as the basis for the asserted value is relevant to the Issues, the Tribunal will Order the Claimant to answer the question which is currently under advisement.
Under Advisement Nos. 3, 4 and 5
31The Claimant was asked to produce all of the “Scott Patterson” file on the redevelopment of the property, to produce any documents in Central Meat files relating to Patterson, and to produce any documents with the senior Regional representatives relating to possible development or re-development of the property.
32The above three questions are inter-related and pertain to the fact that the Claimant had engaged Mr. Patterson, a Land Use Planner, to explore the potential for re-development of the subject property.
33The Region has denied that the Claimants suffered injurious affection that is compensable under section 13(2)(c) of the Expropriations Act. However, the Region states that any compensation should be set-off by the betterment that resulted from construction of the LRT project. The Region claims that the LRT Project resulted in a substantial improvement to the subject lands, and provides the subject lands and the Claimant’s business with superior access, increased exposure to through traffic and makes the lands a highly desirable business and re-development location.
34Counsel for the Region advised the Tribunal that, although no formal application was made by the Claimant, there were clearly “on the ground” efforts by the planner and a pre-consultation meeting with staff. He opined that this information should not be hidden.
35Counsel for the Region submitted that should the planner be called as an expert witness; these files would have to be turned over.
36Counsel for the Claimant submitted to the Tribunal that this request from the Region was overly broad. He made reference to the transcript of Mike Williamson’s Examination of Discovery, wherein he confirmed that Mr. Patterson was retained to review the potential for re-development of the site and that some preliminary discussions occurred with City staff to review zoning permissions.
37Counsel for the Claimant submitted that a preliminary concept plan was provided to the Region, and until such time as the Claimant decides to call Mr. Patterson as an expert witness, the release of any further documentation is premature at this time, as the deadline for submission of Witness Statements is June 30, 2022.
38On the basis of the written motions and oral arguments, the Tribunal agrees with counsel for the Claimant that this documentation requested from the “Scott Patterson” file is not required at this time, unless the Claimant decides to call Mr. Patterson as an expert witness.
CLAIMANT’S MOTION
39The Claimants move to compel the Respondent, Regional Municipality of Waterloo (the “Region”), to answer questions and produce documents that were undertaken to be provided as well as to answer questions and produce documents that were improperly refused at the Examination for Discovery of Derick Finn on February 5, 2021 (the “Examination”).
40During the course of the Motion Hearing, counsel for the Claimant made submissions to the Tribunal regarding the Outstanding Undertakings Nos. 3, 9, 18 and 32 given during the examination of Derek Finn held February 5, 2020, as identified in Schedule “A” to the Motion Record.
41Counsel also made submissions regarding questions under Advisement Nos. 4, 7, 10 and 11 during the same examination of Derek Finn.
Undertaking No.3
42The question was to advise if there was any specific study of financial impacts to Central Meats’ business prior to completion of the Environmental Assessment or commencement of the LRT project.
43This question was answered by Mr. Finn in his Affidavit dated February 7, 2022. He stated that the Region is not aware of any specific study of financial impacts to Central Meats’ business prior to completion of the EA or commencement of the LRT project.
44Counsel for the Claimant has accepted this response and will not pursue further.
Undertaking No. 9
45The Region was to make inquiries to obtain the monthly updated and progress work schedule summaries under section 22.2(a)(iii) of the LRT Contract for the area between Victoria Street and Union Street and to advise of the responses to the inquiries and produce any documents generated as part of the response.
46The Region contracted with Grandlinq General Partners (referred to as “GLQ:) to design and construct the LRT works. According to the answers provided by Derek Finn, a representative of the Region, at the Examination held on February 5, 2020, GLQ was obliged to provide a schedule which sets out the anticipated schedule for the first six months on a high level ( 22.2 (a) (i)) . The Region and GLQ would review that schedule and agree to a schedule which becomes the work schedule (22.2 (c)), of the LRT Contract.
47The response from the Region was that inquiries were made and there were no relevant documents.
48Counsel for the Claimant made specific reference to the Statement of Claim, in particular paragraphs 39 to 41, where the Claimant pleads that throughout the construction period, interferences with access to the remaining lands were substantial and unreasonable due to extended closures and delays.
49Given that relevance is determined by the pleadings, the Tribunal finds that this request is reasonable and needs to be responded to. Given that the contract between the Region and GLQ stretched over a period of 28 months and given that the contract required work schedules to be produced, the Tribunal is not convinced that there are no relevant documents on file with the Region and all documents and communications between the Region and GLQ relating to the LRT project scheduling between Victoria and Union should be produced.
Undertaking No. 18
50The Region was to advise if there were any written delay notices provided from GLQ pursuant to section 40.2 of the contract related to the area between Union and Victoria.
51The response from the Region was that there seven (7) letters from GLQ advising the Region of potential delay and compensation events relating to the King Street Grade Separation. The Region stated that the letters did not provide any information on the period of delay or additional costs associated with the events, but the letters or details were not provided to the Claimant.
52Counsel for the Region advised the Tribunal that the Region has consented to providing the Claimant with copies of the letters, so this matter is resolved.
Undertaking No. 32
53The Region was asked during the Examination whether it intended to call evidence as to what the economic impacts were to properties in general or specific properties or specific businesses, and to advise this in advance of the Hearing.
54In accordance with the draft Procedural Order dated November 16, 2021, the deadline for the exchange of witness lists and witness statements is June 30, 2022.
55Counsel for the Region submitted that, as the deadline for the above is set for June 30, 2022, this request should be considered premature at the present time but should be considered a continuing undertaking.
56In this instance, the Tribunal agrees with council for the Region that this request is premature and can wait until the exchange of witness statements on June 30, 2022.
Under Advisement No.4
57The Region was asked to advise if it agreed that part of the motivation for the Weber Street widening was to maintain roadway capacity and specifically, loss of roadway capacity along King Street resulting from the LRT project between Victoria and Union.
58This was refused by the Region as not being relevant to the matter at hand, as the Weber Street widening was not referenced in any of the Claimant’s pleadings.
59As noted earlier in this Decision, relevance is determined by the pleadings. Counsel for the Claimant stated that the Statement of Claim clearly identifies that their business was affected by both the construction activities over a 28-month period and the reduction of two travel lanes on King Street West post LRT construction.
60During the examination of Derek Finn, reference was made in paragraph 129 to a transportation report dated March 2010, which stated in the Executive Summary:
Since Rapid Transit is proposing to narrow King Street to one lane in each direction to accommodate light rail transit, widening Weber Street may be the most realistic method of maintaining current roadway capacity in the area.
61While there was some debate amongst counsel over the use of the terminology “motivation”, the Tribunal finds that this question is indeed relevant and the “reasoning” for the Weber Street widening should be disclosed.
62The Municipal Environmental Assessment (“EA”) process is a planning tool used by the municipality to determine the preferred technical solution to resolve foreseeable transportation constraints, and the Tribunal acknowledges that, with staff being aware that roadway capacity would be reduced on King Street West, this fact would have formed an input into the EA process.
Under Advisement No. 7
63The Region was asked to provide their responses to GLQ’s monthly schedule updates.
64The Claimant has pleaded that, throughout the construction period, interferences with access to the remaining lands were substantial and unreasonable due to extended closures and delays, including:
- Repeated failure of the Respondent to adhere to project timelines and project phasing plans, resulting in repeated delays, prolonged road closures, public confusion, and prolonged traffic disruptions and traffic deterrence due to construction. This is contained within paragraph 40(a) of the Statement of Claim.
65Although the Region denies the allegations in paragraph 40(a) of the Statement of Claim, it does admit that there were reasonable and necessary schedule changes to the LRT project.
66Given that the Region admits that there were reasonable and necessary schedule changes during the course of the LRT project, the Tribunal notes that the nature and length of the schedule changes may be relevant to the Claimant’s claim for damages, or the denial of losses by the Region.
67The Tribunal agrees with the Claimant that the response to this question is relevant.
Under Advisement No. 10
68The Region was asked if it had advanced any claim for indemnity against GLQ in relation to the matters raised in the proceedings.
69The Region has refused to answer this on the grounds that this is not relevant to the proceedings. Counsel for the Region submitted that the Statement of Claim is against the Region and not GLQ, and GLQ is not a Party to this proceeding.
70Counsel for the Claimant submitted that this answer would be absolutely relevant, considering that the contract was, in fact, delayed and the contract between the Region and GLQ had indemnity clauses.
71The Tribunal notes that the issue in the upcoming proceedings is the Statement of Claim between the Claimant and the Region. The issue of indemnity as it relates to GLQ’s contract with the Region is not before the Tribunal
72After careful consideration of the written and oral submissions, the Tribunal finds that any claim for indemnity from the Region against GLQ, is not relevant to the proceedings.
Under Advisement No. 11
73The Region was asked to review the relevant sections of the ION Light Rail updates and any other updates that are pointing to the sections from Union to Victoria and then the grade separation and advise if there are any corrections to that information.
74The Region has refused to provide these updates.
75Mr. Finn’s Affidavit dated February 11, 2022 stated that reviewing the relevant sections of the ION updates would require approximately 50 hours of work if the ION updates were readily available, and more time would be required if the ION Light Rail updates had to be tracked down and compiled. Furthermore, Mr. Finn advised that the ION updates were based on information received at the time from GLQ and passed on to the public. He would have no way of verifying that the information provided by GLQ was accurate. This information was published by the Region as best information on progress available at the time and has not been updated or otherwise altered by the Region.
76Rule 29.2.03(1) of the Rules for Civil Procedure provides that, in determining as to whether a party or other person must answer a question or produce a document, the Tribunal shall consider whether:
- the time required for the party or other person to answer the question or produce the document would be unreasonable, and
- the expense associated with answering the question or producing the document would be unjustified.
77Counsel for the Region submitted that, given the amount of disproportionate time that would be required to provide this documentation (if available), and the potential fruitlessness of the outcome, the Tribunal should dismiss this request.
78The Tribunal agrees with the position of the Region in this case. The matter of schedule changes has already been established; thus, the Tribunal finds that requiring the Region to expend significant resources to produce the ION updates is not required.
ORDER
79The Tribunal Orders the Claimants to provide answers within thirty (30) days to questions 14 and 37 as identified in Schedule “A” of the Region’s Motion, which was undertaken to be answered during the examination of discovery of Mr. Williamson held on February 4, 2020, and for which inadequate or unresponsive answers have been provided. The Tribunal notes that question 14 has been partially answered and the only remaining request is to be advised in writing what evidence there is in support of the June 2015 date.
80The Tribunal Orders the Claimants to provide answers within thirty (30) days, to question 2 which was taken under advisement during the examination of discovery as identified in Schedule “C” of the Region’s Motion.
81The Tribunal Orders the Region to provide answers within thirty (30) days, to question 9 identified in Schedule “A” in the Claimant’s motion, which were undertaken to be answered during the examination of discovery of Mr. Finn, a representative of the Region, held on February 5, 2020, and which to date has not been answered.
82The Tribunal Orders the Region to provide answers within thirty (30) days, to questions 4 and 7, which were taken under advisement during the examination of discovery of Mr. Finn, held on February 5, 2020, as identified in Schedule “C” of the Claimant’s Motion.
83With regard to the requests for an Order for costs, the Tribunal has found nothing in the conduct of the Parties or in the submissions that would justify the awarding of costs.
84The Member is not seized.
“T. Prevedel”
T. PREVEDEL
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.