Edward & Dorothy Janisse v. City of Windsor, 2022 CanLII 51243

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 9, 2022

CASE NO(S).:

OLT-21-001159

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

Claimant:

Edward & Dorothy Janisse

Respondent:

City of Windsor

Subject:

Land Compensation

Property Address/ Description:

Part of Lots 119 & 120, Concession 3

Municipality:

City of Windsor

OLT Case No.:

OLT-21-001159

OLT File No.:

OLT-21-001159

OLT Case Name:

Edward & Dorothy Janisse v. City of Windsor

Heard:

May 10, 2022 by video hearing

APPEARANCES:

Parties

Counsel

Edward and Dorothy Janisse (“Claimants”)

Dante D. Gatti, counsel of record, (not appearing)

The Corporation of the City of Windsor (“City”)

Patrick Brode

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON MAY 10, 2022, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This hearing event is the first Case Management Conference (“CMC”) conducted in this Claim for compensation brought by the Claimants against the City arising out of the taking of a portion of the Claimants’ lands in March of 2016. Eventually, after some delays with respect to filings, a Statement of Claim was filed by the Claimants on June 15, 2021.

2A first draft of a Procedural Order was provided by the City in advance of the CMC, but was not populated with any dates for the exchange of pre-hearing materials. It was not on the consent of the Claimants.

Non-Attendance of Counsel

3Despite Notice of the hearing event having been provided, and despite communications exchanged with counsel for both parties well in advance of this hearing event, counsel for the Claimants failed to attend this scheduled CMC and there was no prior communication of any conflict or circumstance that would explain his non-attendance. Attempts were made by counsel for the City to reach Mr. Gatti directly, and at his office, to no avail. The CMC was then conducted with Mr. Brode in attendance. The CMC lasted beyond the 15-minute period provided for in Rule 3.3 of the Tribunal’s Rules of Practice and Procedure and Mr. Gatti still failed to appear before the CMC was concluded.

4Within approximately 40 minutes of concluding the CMC, counsel for the Parties were advised by email, by the Case Coordinator, as to the hearing dates. An email was received shortly thereafter from counsel for the Claimants advising that health issues had prevented him from dialing into the hearing. It is unclear why such personal circumstances, representing a quite reasonable basis for the non-attendance of counsel to a scheduled hearing event, prevented the courtesy of prior communication of such circumstances to the Tribunal and that counsel would be unable to attend.

5The Tribunal has noted a very troublesome and problematic tendency, of late, where counsel have simply failed to show up for scheduled CMCs before the Tribunal and have failed to extend the courtesy of advising the Tribunal of any reason for such non-attendance. To be clear, this was the first such occasion for this counsel in front of this Panel Member, but what is notable is that this increasing incidence of non-attendance to a scheduled CMC, and lack of communication from counsel, has occurred almost exclusively in Expropriation proceedings before the Tribunal and most commonly, by counsel on behalf of the expropriating authority including the Ministry of Transportation.

6This conduct on the part of counsel in the case management process can no longer be tolerated. The failure to attend a scheduled hearing event, and the failure to communicate with Tribunal staff regarding such non-attendance, demonstrates a lack of respect and courtesy for the Tribunal, fellow counsel, and generally the administration of justice. Such apathy towards the Tribunal’s calendar also results in inefficiencies, wasted time, additional expense and interference with the orderly case management of the Tribunal’s proceedings. The Rules of Professional Conduct of the Law Society of Ontario speak to the duty of lawyers in the administration of justice to discharge their responsibilities to tribunals with integrity and courtesy, to perform all functions conscientiously, diligently and in a timely and cost-effective manner, and when acting as an advocate to treat the tribunal with candour, fairness, courtesy and respect.

7In the context of its case management processes, absent exceptional and unusual circumstances, the Tribunal expects that counsel will: (a) attend all scheduled CMCs; (b) arrange for alternate counsel or agents to attend or communicate promptly with staff regarding any sudden circumstances that would prevent the solicitor of record attending to the CMC; (c) ensure, well-prior to a CMC, that counsel have communicated with each other regarding case management, including the form of a draft Procedural Order and Issues List in order to comply with Rule 19.2 of the Tribunal’s Rules of Practice and Procedure; and (d) attend to the CMC prepared and ready to assist in the effective case management of a proceeding.

8The non-attendance of counsel for a party to a scheduled CMC allows the Tribunal to make such orders as are necessary to address such non-attendance or non-compliance with case management requirements pursuant to the Ontario Land Tribunal Act and the Statutory Powers Procedure Act. The Tribunal may now be required to deal with such demonstrated failure to abide by the directives of the Tribunal within its case management of all files, including proceedings under the Expropriations Act.

MEDIATION AND SETTLEMENT

9Since only one of the two parties was in attendance at the CMC it was not possible for the Tribunal to address the subject of settlement or mediation with counsel for the purposes of s. 17 on the Ontario Land Tribunal Act.

PROCEDURAL ORDER

10The Tribunal reviewed with the City the draft Procedural Order which it had filed and which was amended immediately following the CMC to reflect the hearing dates secured and provided to counsel, and the few requested additions to the Procedural Order that the Tribunal noted had been omitted. 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.

11Appended 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 – FEBRUARY 22 to 24, 2023

12For the three-day video hearing, commencing at 10 a.m. on Wednesday, February 22, 2023, and continuing to Friday, February 24, 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:

GoTo Meeting: https://global.gotomeeting.com/join/979388733

Audio-only telephone line: +1 (647) 497-9373 or (Toll-Free) 1(888) 299-1889

Access Code: 979-388-733

13Parties, 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

14Persons 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 provided above.

15Individuals 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.

TCC Status Hearing – DECEMBER 9, 2022

16A TCC Status hearing to review the draft hearing plan and address any other outstanding matters relating to the hearing, will commence at 9 a.m. on Friday, December 9, 2022, with the following dial-in instructions:

17Individual(s) are directed to call 416-212-8012 or Toll Free 1-866-633-0848 on the assigned date at the correct time. When prompted, enter the code 4779874# to be connected to the call. It is the responsibility of the person(s) participating in the call to ensure that they are properly connected to the call and at the correct time. Questions prior to the call may be directed to the Tribunal’s Case Coordinator having carriage of this case.

Other Matters

18There will be no further notice with respect to the two hearing events and the Panel Member is not seized.

19The 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

PROCEDURAL ORDER

PROCEDURAL ORDER

CASE NO(S).: OLT-21-001159

PROCEEDING COMMENCED UNDER Expropriations Act

Applicant(s): Edward Janisse and Dorothy Janisse

Subject land compensation:

Property Address/Description: 6424 County Road 42

Municipality: City of Windsor

Municipal File No:. EXP 7842

OLT Case No.: OLT-21-001159

OLT Case Name: E. & D. Janisse v. Windsor (City)

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 February 22, 2023 at 10:00 a.m.

3. The parties’ initial estimation for the length of the hearing is three 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 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 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. 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 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.

10. Expert witnesses in the same field shall have a meeting on or before 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 November 1, 2022.

11. 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 13 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.

12. 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 13 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.

13. On or before October 1, 2022, the applicants shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case coordinator.

14. On or before November 1, 2022, the respondent shall provide copies of its expert and witness statement to the claimants and to the OLT case coordinator.

15. The applicants shall have two additional weeks to file a responding expert report, if any, and file same with the OLT.

16. 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.

17. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before January 27, 2023.

18. 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.

19. 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.

20. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before November 1, 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.

21. There shall be a final status hearing on the claim on or before December 9, 2022 in accordance with the directive of the Tribunal.

22. 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.

23. 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: David L. Lanthier, Vice-Chair

Attachment to Procedural Order

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

A participant is an individual or corporation, whether represented by a lawyer or not, who may make a written submission to the Tribunal. A participant cannot make an oral submission to the Tribunal or present oral evidence (testify in-person) at the hearing (only a party may do so). Section 17 of the Ontario Land Tribunal Act states that a person who is not a party to a proceeding may only make a submission to the Tribunal in writing. The Tribunal may direct a participant to attend a hearing to answer questions from the Tribunal on the content of their written submission, should that be found necessary by the Tribunal. A participant may also be asked questions by the parties should the Tribunal direct a participant to attend a hearing to answer questions on the content of their written submission.

A participant must be identified and be accorded participant status by the Tribunal at the CMC. A participant will not receive notice of conference calls on procedural issues that may be scheduled prior to the hearing, nor receive notice of mediation. A participant cannot ask for costs, or review of a decision, as a participant does not have the rights of a party to make such requests of the Tribunal.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party or participant intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party or participant intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

A participant statement is a short written outline of the person’s or group’s background, experience and interest in the matter; a statement of the participant’s position on the appeal; a list of the issues which the participant wishes to address and the submissions of the participant on those issues; and a list of reports or materials, if any, which the participant wishes to refer to in their statement.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.