Eva Nemeth v. City of Toronto, 2022 CanLII 18628

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

March 11, 2022

CASE NO(S).:

OLT-21-001448

PROCEEDING COMMENCED UNDER subsection 26 of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant:

Eva Nemeth

Respondent:

City of Toronto

Subject:

Land Compensation

Property Address/Description:

1230-1234 Weston Road

Municipality:

City of Toronto

OLT Case No.:

OLT-21-001448

OLT File No.:

OLT-21-001448

OLT Case Name:

Nemeth v. Toronto (City)

Heard:

February 18, 2022 by Video Hearing

APPEARANCES:

Parties

Counsel

Eva Nemeth

Stephen D’Agostino

City of Toronto

Christel Higgs

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON FEBRUARY 18, 2022 AND ORDER OF THE TRIBUNAL

1A Case Management Conference (“CMC”) was held by the Ontario Land Tribunal (“OLT” or “Tribunal”) by Video Hearing (“VH”) on February 18, 2022.

2This case concerns a claim for compensation by the Claimant Eva Nemeth under the Expropriations Act, R.S.O. 1990, c. E.26, as amended, concerning the Claimant’s property located at 1230-1234 Weston Road (“Subject Property”) in the City of Toronto (“City”).

3The Parties advised the Tribunal that they had largely agreed on the terms of a Procedural Order (“PO”) to govern the hearing of this matter and that they were seeking a five (5) day hearing. Counsel for the Parties, subsequent to the VH, submitted a draft PO in agreed form and content for the consideration of the OLT.

4The Tribunal has now scheduled the hearing in this proceeding to be held by VH which shall commence on December 5, 2022 at 10 a.m. for a period of five (5) days.

5Parties 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/765631861

Access code: 765-631-861

6Parties 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

7Persons 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) 1-888-455-1389 or +1 (647) 497-9391. The access code is 765-631-861.

8Individuals 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.

ORDER

9The Tribunal orders that the hearing of this case shall be governed by the Procedural Order now attached as Appendix 1.

“William R. Middleton”

WILLIAM R. MIDDLETON

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.

APPENDIX 1

CASE NO(S).: OLT-21-001448

PROCEEDING COMMENCED UNDER the Expropriations Act, R.S.O. 1990, c. E.26, as amended:

Applicant(s)/Appellant(s): Eva Nemeth

Subject: Highest and Best Use and Disturbance Damages

Property Address/Description: 1230-1234 Weston Road

Municipality: City of Toronto

Municipal File No.:

OLT Case No.: OLT-21-001448

OLT File No.: OLT-21-001448

OLT Case Name: Nemeth v. City of Toronto

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 Monday, December 5, 2022 at 10:00 a.m. at https://global.gotomeeting.com/join/765631861, Access code: 765-631-861.

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.

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 provided on Monday, November 7, 2022. 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.

Requirements Before the Hearing

7. Affidavit of Documents (together with production briefs of the documents) shall be exchanged by Monday, May 30, 2022.

8. Discoveries shall be completed on or before Monday, July 4, 2022.

9. All undertakings provided at the Examination for Discovery of the parties shall be answered on or before Friday, August 5, 2022.

10. Any motion(s) arising out of the Examinations for Discovery shall be filed on or before Thursday, June 30, 2022. The Motion(s) if necessary, shall be heard on a date and time to be determined by the Tribunal. The Tribunal’s Rules of Practice and Procedure apply in relation to any Motion(s) arising out of the discovery process. Should the parties agree that a motion day is not required, the parties agree to advise the Tribunal as soon as possible.

11. 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 Thursday, September 1, 2022 and in accordance with paragraph 22 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.

12. Expert witnesses in the same field shall have a meeting on or before Friday, September 30, 2022 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 Monday, November 21, 2022.

13. 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 17 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.

14. 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 17 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 17 below.

15. On or before Friday, October 7, 2022, the parties shall provide copies of their witness expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 26 below.

16. On or before Monday, November 21, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 26 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

17. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before Monday, November 7, 2022 after the evidence is received and in accordance with paragraph 26 below.

18. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, November 25, 2022.

19. 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 Tribunal 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 Monday, December 5, 2022.

20. 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.

21. 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.

22. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, November 7, 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 Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

23. 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 Tribunal. The delivery of documents by email shall be governed by the Rule 7.

24. 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.

Attachment 1

Party

Party Status

Counsel / Representative

Eva Nemeth

Claimant

Thomson, Rogers 3100-390 Bay Street Toronto, Ontario M5H 1W2 Stephen D’Agostino (LSO #23661Q) T: 416.868.3100 F: 416.868.3134 sdagostino@thomsonrogers.com

City of Toronto

Respondent

M&H LLP 61A Jarvis St., Suite 200 Toronto, ON M5C 2H2 Christel Higgs (LSO #53408T) Tel:416.947.6701 Fax: 416.947.6703 christel@mhlawyers.ca

Attachment 2

OLT File No.: OLT-21-001448

OLT Case No.: OLT-21-001448

ONTARIO LAND TRIBUNAL

IN THE MATTER OF THE EXPROPRIATIONS ACT, R.S.O. 1990, c. E.26, as amended

B E T W E E N:

EVA NEMETH

Claimant

• and -

CITY OF TORONTO

Respondent

ISSUES LIST

1. The parties disagree on the market value of the expropriation of 1230-1234 Weston Road, Toronto (the “Subject Property”).

2. The parties disagree on the Highest and Best Use of the Subject Property, and the probability or reasonable expectation of intensification of the Subject Property as of the valuation date.

3. Metrolinx disputes the legal authority for the Claimant’s claim for disturbance damages. The application of Section 13(2) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended (the “Act”), is in dispute.