Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 12, 2022
CASE NO(S).: OLT-21-001186
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: My Place on 7 Inc.
Respondent: Regional Municipality of York
Subject: Land Compensation
Property Address/Description: 4850 Highway 7
Municipality: City of Vaughan
OLT Case No.: OLT-21-001186
OLT Lead Case No.: OLT-21-001186
OLT Case Name: My Place on 7 Inc. v. York (Regional Municipality)
Heard: April 28, 2022 by video hearing
APPEARANCES:
| Parties | Counsel |
|---|---|
| Regional Municipality of York | Frank Sperduti, Simon Fung |
| My Place on 7 Inc. | Shane Rayman, Leah Cummings |
MEMORANDUM OF ORAL DECISION DELIVERED BY BRYAN W. TUCKEY ON APRIL 28, 2022 AND INTERIM ORDER OF THE TRIBUNAL
1The Ontario Land Tribunal (“Tribunal”) convened the first Case Management Conference (“CMC”) for the above noted file. This is a matter under the Expropriations Act, R.S.O. 1990, c. E. 26. The Claimant is My Place on 7 Inc. (“Claimant”) and the Respondent is the Regional Municipality of York (‘Region”). The subject lands are known municipally as 4850 Highway 7 in the City of Vaughan (“City”). The purpose of this CMC is to provide direction to certain procedural matters that are under dispute between the parties.
2There are two parties of record in this matter and there are no additional party requests. There are no participants of record in this proceeding.
3The Tribunal gave notice on February 10, 2022. No further notice is required.
4In March 2018, the Region expropriated a permanent and two temporary easements from the subject lands. The easements were necessary to complete the expansion of the rapid transit services along Highway 7 in the City. The temporary easements expired in November 2020. Mr. Sperduti, counsel for the Region in his submission noted that all of the works on Highway 7 are completed and to his understanding, there are no additional phases of work required adjacent to or near the subject lands. A traffic light and a left-hand turn lane has been constructed providing access to the subject lands.
5Suffice it to say the matter has an extensive history. A brief overview is as follows:
a. In March 2018, the Region served a section 25 Appraisal Report and a Notice of Expropriation;
b. In March 2021, the Claimant submits an application form to the City for a proposed development on the subject lands;
c. On July 20, 2021, the Region served a Notice of Arbitration on the Claimant;
d. In September 2021, the Region gave its counsel instructions to bring a motion for the issuance of a Procedural Order (“PO”). In December 2021, the Tribunal directed that the Region bring a motion in writing in keeping with Rule 10 of the Ontario Land Tribunal Rules of Practice and Procedure (“Rules”). This motion is not before the Tribunal.
e. in January 2022, the Tribunal was notified that both parties agreed that a CMC is appropriate to have the Tribunal give direction on how to move this matter forward.
Claimant’s Position
6Mr. Rayman, counsel for the Claimant, provided a comprehensive ‘Brief of the Claimant’ dated April 25, 2022 to assist the Tribunal. Mr. Rayman is of the position that the proper way to proceed in this matter is having the Region advance a motion in writing in keeping with Rule 10 of the Rules. By following this process, the Tribunal would be in possession of the proper evidence in order to determine if the Motion has merit. Mr. Rayman noted he has made several requests for information with respect to what further changes are to be made to Highway 7 that might affect his client’s property.
7The Claimant has a development application before the City to construct a 14-storey residential building. Mr. Rayman tendered the view that until the development application is dealt with, and the access arrangements defined in its approval, the serving of a Statement of Claim for Injurious Affection is premature. Comments from the Region with respect of the Claimant’s development application to the City, require further review to determine potential impact on the proposal.
8The Claimant requests that the Tribunal set a timetable for the Region’s Motion including exchange of affidavit evidence, scheduling of cross-examination, exchange of facta on the motion and set a date to hear the Motion. In this way, the Tribunal would have a complete record and follow a proper process.
Region’s Position
9Mr. Sperduti noted that the development application was submitted to the City years after the Region served a Notice of Expropriation to the Claimant and appropriate compensation will be assessed as of March 2018. The construction on Highway 7 for which the expropriation was required has been undertaken and was completed in 2020.
10In the absence of the Claimant submitting Statement of Claim, the Region served on the Claimant July 20, 2021 a Notice of Arbitration and provided the requisite proof of service to the Tribunal pursuant to Rule 26.8 – ‘Notice of Arbitration by Respondent’. The Region subsequently served and filed a Notice of Motion to compel the Claimant to come forward with its Statement of Claim on December 21, 2021.
11Mr. Sperduti advised the Tribunal that although he had originally contemplated bringing forward a motion to the Tribunal, it was brought to his attention that new language made its way into Rule 29.9 – ‘Service of Statement of Claim for Compensation’ in June 2021. The Rule now states: “Where a Notice of Arbitration has been served by the respondent, the claimant shall have 20 days to serve a Statement of Claim unless a different time period is directed by the Tribunal…” (Tribunal emphasis). The Region has not received the requisite Statement of Claim.
12Mr. Sperduti in his submission stated that the Tribunal Rules are clear in this regard. With the Region properly filing the Notice of Arbitration, the Claimant shall deliver a Statement of Claim.
13He noted that there is considerable risk and prejudice by the continued delay in finalizing this matter in a timely manner. The Region is compelled to pay interest on an unknown amount of compensation for an indeterminate period of time. The additional wording in Rule 29.9 speaks directly to his request that the Tribunal provide a timeline for the Claimant to deliver a Statement of Claim and allows for an invitation for the Tribunal to establish a process for the parties to submit a PO on consent.
Tribunal Disposition
14The Tribunal will order the Claimant to serve a Statement of Claim to the Region and the Tribunal. This matter has languished for an extended period of time and the Tribunal Rules are clear on how matters of this nature are to proceed. The Tribunal finds that Rules 26.6 and 26.9 clearly state that once a Notice of Arbitration has been served by the Region, “the Claimant shall have 20 days to serve a Statement of Claim”. The Notice of Arbitration was served July 21 2021 and no Statement of Claim has been served on the Region.
15The Tribunal finds that, in keeping with Rule 26.9, it does have the jurisdiction to order the production of a Statement of Claim from the Claimant. Changes to this section appear to directly speak proceedings of this nature and the desire ‘to keep the adjudication process moving’.
16The Tribunal agrees with the Region’s argument that the obligation to pay interest on any compensation presents a risk and prejudice and therefore any compensation should be paid in a timely fashion. The works that required the expropriation were finished in 2020 and Mr. Sperduti understands that there are no further plans with respect to the transit way in front or near the subject lands. In any event, all the questions of the Claimant will be answered during the examination and cross-examination that will be scheduled at the discovery phase of this proceeding.
17The Tribunal is prepared to define a different period of time by which the Claimant is to serve the Region with its Statement of Claim (Rule 26.9). The Claimant will serve the Region and the Tribunal a Statement of Claim no later than 4:30 p.m. on Thursday, June 30 2022.
Future Case Management Conference
18The Tribunal determines that it is prudent to schedule a second CMC. With the consent of both parties, a CMC is scheduled for Thursday, September 15, 2022. The Tribunal fully expects that the parties will submit a PO on consent prior to this CMC. At that time, the Tribunal will consider this matter’s status, approve the PO, and appoint a time for hearing of arbitration.
19Should the parties find the need for Tribunal-led mediation with respect to these proceedings, a request may be made at their convenience.
Case Management Conference Technical Details
20A second CMC will convene on Thursday, September 15, 2022, by video hearing at 10 a.m. as follows:
https://global.gotomeeting.com/join/709076365
Access Code: 709-076-365
21Parties 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.
22Parties 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.
23Persons 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 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.
24Individuals 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 video hearing 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.
INTERIM ORDER
25Accordingly, the Tribunal Orders:
a. THAT the Claimant serve the Regional Municipality of York and the Tribunal a Statement of Claim no later than 4:30 p.m. on Thursday June 30, 2022.
b. THAT a one-day Case Management Conference will convene on Thursday, September 15, 2022.
26No further notice will be given.
27The Tribunal Member is not seized.
“Bryan W. Tuckey”
bryan w. tuckey
MEMBER
Ontario Land Tribunal
Website: www.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.