Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
March 29, 2022
CASE NO(S).:
OLT-22-002291
(Formerly LC180016)
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimants:
Dean Adams cob Lube N Go
Respondent:
Regional Municipality of Waterloo
Subject:
Land Compensation
Property Address/ Description:
1138 King St E
Municipality:
Regional Municipality of Waterloo
OLT Case No.:
OLT-22-002291
Legacy Case No.:
LC180016
OLT Lead Case No.:
OLT-22-002291
Legacy Lead Case No.:
LC180016
OLT Case Name:
Dean Adams cob Lube N Go v. Waterloo (Region)
Heard:
March 15, 2022 by video hearing
APPEARANCES:
Parties
Counsel
2350685 Ontario Inc. cob Lube N Go (“Claimant”)
Mark Grossman
Regional Municipality of Waterloo (“Region”)
Richard Brookes
MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON MARCH 15, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This hearing event was the second Case Management Conference (“CMC”) conducted in this Claim for compensation against the Region arising out of injurious affection asserted by the Claimant as a tenant of 1138 King Street East., in Kitchener.
2A Pre-Hearing Conference was conducted by the Tribunal a little over two years ago on February 26, 2020. Although a draft Procedural Order had been submitted for consideration at that time the Tribunal stood down to allow for the parties to move through the discoveries phase and then reattend for further case management once they were ready to proceed to the scheduling of a hearing.
3On September 3, 2021, the Claimant requested a CMC to arrange for a hearing date. A CMC was set for November, 2021 but that hearing event was adjourned at the request of the parties. The CMC was rescheduled to this date.
4The Tribunal is advised that the parties have completed most of the discovery and document exchange by agreement and agreed to further dates for additional disclosure and exchanges. There is sufficient time before the commencement of the hearing to address any motions relating to discovery, if required.
ORDER FOR SUBSTITUTION OF THE CLAIMANT
5The Tribunal had in its file, a prior draft Order and a request, on consent of both parties, to correct the identified Claimant, which had not previously been addressed. The Claimant was previously identified as Mr. Dean Adams carrying on business as “Lube N Go” but, in actuality the correct tenant and operator of the business is the numbered company 2350685 Ontario Inc. The requested substitution of the corporate Claimant, for the previous personal claimant, will have no discernible impact upon the proceeding save and except to correct the record.
6Pursuant to Rule 8.2 of the Tribunal’s Rules of Practice and Procedure the Tribunal orders that the corporate entity 2350685 Ontario Inc. be, and the same is hereby, substituted in place and stead of the person, Dean Adams. All interest in the proceeding is transferred to the substituted Claimant.
7The Tribunal is advised that amended pleadings have already been prepared by both parties to the proceeding. The Amended Claim and Amended Reply are appended to the Procedural Order and will hereafter govern the proceedings.
MEDIATION AND SETTLEMENT
8The Tribunal addressed the subject of settlement or mediation with counsel. The parties anticipate ongoing discussions and are not averse to making a request for mediation for the purposes of resolving some or all of the issues. The Parties will make the necessary request for mediation to the Tribunal and were advised by the Panel Member to consider the request as soon as it might be practical for the parties to do so to avoid delay and to be helpful in removing hearing dates from the calendar if a resolution is possible.
PROCEDURAL ORDER
9The parties prepared a draft Procedural Order which was amended immediately following the CMC to reflect the hearing dates secured and provided to counsel. The Tribunal subsequently received and reviewed the revised draft of the Procedural Order and Issues List. The fixed dates for the hearing on the merits are now provided in the Procedural Order appended to this Decision and the coordinates for the hearings are set out below in this Decision.
10Appended to this Decision as Attachment 1 is the Procedural Order, which will now govern all further pre-hearing procedural requirements and the hearing of the Appeal.
HEARING – MARCH 7 to March 10, 2023
11For the four-day video hearing, commencing at 10 a.m. on Tuesday, March 7, 2023, and continuing to Friday, March 10, 2023, the Parties 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/519389173
Access Code: 519-389-173
12Parties, witnesses and observers 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
13Persons 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: (647) 497-9373 or Toll Free 1-888-299-1889. The access code is 519-389-173.
14Individuals 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.
15There will be no further notice with respect to the hearing and the Panel Member is not seized.
16The Tribunal so orders and provides these CMC directives for the purposes of the case management of this Proceeding.
“David L. Lanthier”
DAVID L. LANTHIER
VICE-CHAIR
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.
ATTACHMENT 1
OLT File No: LC180016
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:
2350685 ONTARIO INC., c.o.b. LUBE N GO
Claimants
and
REGIONAL MUNICIPALITY OF WATERLOO
Respondent
PROCEDURAL ORDER OF THE TRIBUNAL
- 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
The video hearing will begin on March 7, 2023 at 10:00 a.m.
The parties’ initial estimation for the length of the hearing is 4 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.
The parties and participants identified at the case management conference are set out in Attachment 1.
Issues
- The issues are set out in the Claimants’ Statement of Claim and the Respondent’s Reply attached as Attachment 2.
Order of Evidence
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.
Any person intending to participate in the hearing should provide a mailing address, e-mail 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, e-mail address and the phone number as soon as possible.
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
The parties agree that, if attendance at mediation is agreed to by both parties after the exchange of expert reports, the parties are to attend and participate in a mediation pursuant to Rule 18 of the Tribunal’s Rules of Practice and Procedure before the Tribunal on or before January 31, 2023. .
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 by the Claimant on or before September 1, 2022 and by the Respondent on or before September 16, 2022. 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.
Expert witnesses in the same field shall have a meeting on or before October 31, 2022 and use best efforts to try to resolve or reduce the issues for the hearing.
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. 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.
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.
On or before December 1, 2022, 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 23 below.
The parties shall deliver all reply evidence on or before January 20, 2023.
On or before February 17, 2023, the parties shall provide copies of their visual evidence to all of the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within fourteen (14) days after the evidence is received.
The parties shall cooperate to prepare a joint document book and Agreed Statement of Facts which shall be shared with the OLT case co-ordinator on or before February 15, 2023.
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 7:00 p.m. the day before that witness gives evidence.
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 fifteen (15) days before the Tribunal hears the motion.
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 seven (7) days before the hearing that the written evidence is not part of their record.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before February 24, 2023 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.
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.
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
KEY PROCEDURAL DATES
Exchange of Witness Lists
September 1, 2022
Exchange of Witness and Expert Statements, together with Participant Statement(s)
December 1, 2022
Exchange of Reply Witness and Reply Expert Statements
January 20, 2023.
Meeting of Experts
October 31, 2022
Exchange of Visual Evidence
February 17, 2023
Mediation to be conducted before the OLT
Before January 31, 2023
Filing of Statement of Agreed Facts
February 15, 2023
Joint Book of Documents to be filed
February 15, 2023
Hearing Plan to be filed
February 24, 2023
Hearing
March 7, 2023
Attachment #1 Parties & Participants
Counsel for the Claimant:
SHUH CLINE & GROSSMAN LLP
17Weber Street West
Kitchener, ON N2H 3Y9
Mark S. Grossman
Tel: 519- 578-9010
MGrossman@shuhclinegrossman.com
Counsel for the Respondent:
Regional Municipality of Waterloo
Legal Services
150 Frederick Street
Eighth Floor
Kitchener, ON N2G 2J3
Richard Brookes
Tel: 519-575-4458 rbrookes@regionofwaterloo.ca
Attachment #2 Statement of Claim and Reply
Attachment #3 Order of Evidence
Claimant’s opening statement
Respondent’s opening statement
Claimant’s evidence and cross-examination
Respondent’s evidence and cross-examination
Claimant’s reply evidence
Claimant’s closing statement
Respondent’s closing statement