Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 21, 2022
CASE NO(S).: OLT-22-002735 (Formerly LC210008)
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriation Act, R.S.O. 1990, c. E. 26, as amended
Claimant: Ashfaq and Nusrat Kurd
Respondent: Regional Municipality of Halton
Subject: Land Compensation
Property Address: 11612 Britannia Road
Municipality: Regional Municipality of Halton
OLT Case No.: OLT-22-002735
Legacy Case No.: LC210008
OLT Lead Case No.: OLT-22-002735
Legacy Lead Case No.: LC210008
OLT Case Name: Kurd v. Halton (Reg.)
Heard: June 16, 2022 via Telephone Conference Call (“TCC”)
APPEARANCES:
| Parties | Counsel |
|---|---|
| Ashfaq Ahmed Kurd and Nusrat Parveen Kurd | M. Goldstein |
| Regional Municipality of Halton | P. Morley |
MEMORANDUM OF ORAL DECISION DELIVERED BY R.G.M. MAKUCH ON JUNE 16, 2022 AND ORDER OF THE TRIBUNAL
1This is the first Case Management Conference (“CMC”) respecting a claim by Ashfaq Kurd and Nusrat Kurd for compensation from Halton Region for market value, injurious affection and disturbance damages as a result of the expropriation of approximately 0.043 acres from the property known municipally as 11612 Britannia Road, Milton.
2Counsel for the parties submitted separate draft Procedural Orders (“PO”), which outlined their diverging views as to how and when the pre-hearing process would unfold. Their only point of agreement was as to the proposed length of the hearing – five days.
3Mr. Goldstein, argues that this matter has been outstanding since July 2019 when the expropriation occurred. The Notice of Arbitration and Statement of Claim were served on the Respondent on March 3, 2021 and the Respondent’s Reply was served on the Claimants on March 23, 2021. Mr. Goldstein states that no progress has been in the advancement of this claim despite numerous efforts to do so by the Claimants. Mr. Goldstein maintains that the Respondent and its counsel have not cooperated in moving this matter forward with different counsel from the same firm being assigned at various times. Ms. Piper has now had carriage of the file for approximately two months according to Mr. Goldstein.
4Mr. Goldstein is proposing a timetable, which would culminate in a hearing in early June 2023. Affidavits of Documents would be served by June 30, 2022 and Examinations for Discovery completed by July 29, 2022.
5Ms. Piper on the other hand is proposing a timetable, which would lead to a hearing in mid-November 2023. Affidavits of Documents would be served by December 16, 2022 and Examinations for Discovery completed by February 17, 2023. Ms. Piper argues that she is going on maternity leave in the very near future and will not be available to advance this matter and that there is no one available in her firm to take carriage of this matter.
6Ms. Piper’s proposed timetable would delay the hearing of this matter by approximately six months and counsel for the Claimants maintains that such a delay is unreasonable under the circumstances given the delay that has already occurred since service of the Statement of Claim. Mr. Goldstein argues that his clients are entitled to a timely adjudication.
7The Tribunal attempted to get the parties to agree to some form of compromise as to the timetable but Ms. Piper insisted that such was not possible.
8The Tribunal finds that the position taken by the Respondent with respect to its proposed timetable is quite unreasonable given the delay it causes and the delays that have already occurred since service of the Notice of Arbitration and Statement of Claim in March 2021. The Claimants are entitled to a timely adjudication of this matter.
9Counsel were directed to have discussions as to the timetable and to report back to the Tribunal not later than close of business on June 23, 2022. Failing agreement, the Tribunal would impose a timetable it considered reasonable under the circumstances and issue the appropriate PO.
10Counsel for the parties have advised that they have agreed to a timetable and provided a draft PO on consent.
11The hearing will commence on Monday, July 10, 2023. Five days have been set aside.
12The Tribunal has also set aside Friday, January 13, 2023 for the hearing of any motions arising out of the discovery process.
Friday, January 13, 2023 GoTo Meeting: https://meet.goto.com/687587165 Access code: 687-587-165 Audio-only telephone line: +1 (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 687-587-165
Monday, July 10, 2023 GoTo Meeting: https://meet.goto.com/687587165 Access code: 687-587-165 Audio-only line: +1 (647) 497-9373 or Toll Free 1-888-299-1889 Audio-only access code: 687-587-165
13Parties 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.
14Parties 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
15Persons 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.
16Individuals 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.
17This proceeding shall be governed by Attachment 1 hereto.
18There will not be any further notice.
19I am not seized.
“R.G.M. Makuch”
R.G M. MAKUCH
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.
OLT Case No.: OLT-22-002735 OLT Legacy Case No.: LC210008
ATTACHMENT 1
ONTARIO LAND Tribunal
IN THE MATTER OF the Expropriations Act, R.S.O. 1990, c. E.26, as amended AND IN THE MATTER OF an arbitration
B E T W E E N:
ASHFAQ AHMED KURD and NUSRAT PARVEEN KURD
Claimants
- and -
REGIONAL MUNICIPALITY OF HALTON
Respondent
PROCEDURAL ORDER OF THE TRIBUNAL
The Tribunal has issued procedural directions for this arbitration, which are confirmed in the following Order of the Tribunal.
- At the request of any person, or on its own motion, the Tribunal may amend, vary or supplement all or any part of this Order at any time, either by making a ruling orally or by a further procedural order.
CONDUCT OF THE HEARING
Place and Time
The hearing will commence on July 10, 2023 at 10:00 a.m. at a location to be determined by the Tribunal. The time allotted for the hearing is five (5) days.
Issues
The issues at the hearing shall be those set out in the pleadings filed, including such amendments, if any, as may be permitted by the Tribunal.
Discovery Process
(1) The Affidavits of Documents of the Claimants and the Respondent shall be served by August 31, 2022.
(2) The Examinations for Discovery shall be completed by October 7, 2022.
(3) All undertakings provided at the Examination for Discovery of the parties shall be answered on or before November 30, 2022.
(4) A motion to the Tribunal arising out of the discovery process shall be scheduled for a full day on January 13, 2023 at the Offices of the Ontario Land Tribunal, 655 Bay Street, 16th Floor, Toronto, Ontario or by videoconference. Should the motion be unnecessary the parties shall notify the Tribunal by December 13, 2022.
(5) Any production or further Examination for Discovery arising from answers to undertakings or any motion before the Tribunal shall be completed by January 27, 2023.
The Pleadings
(1) The Notice of Arbitration and Statement of Claim was served by the Claimants on March 3, 2021.
(2) The Respondent served its Reply on March 23, 2021.
(3) Any requests to amend pleading shall be brought before the Tribunal by way of a motion on or before January 27, 2023.
Written Evidence
(1) “Written evidence” includes all written material, letters, reports, studies and documents which a party intends to present as evidence at the hearing. Written evidence shall have consecutively numbered pages and, where appropriate, consecutively numbered paragraphs.
(2) “Expert report” means a document prepared by an expert witness, consisting of an outline of his or her qualifications, an outline of the issues he or she will address in oral evidence, a description of the expert witness’ opinions on those issues, and a list of reports or studies that the expert witness will rely on at the hearing.
(3) “Witness statement” means a document consisting of a short outline of the facts and issues that a lay witness will address in oral evidence.
(1) The parties shall deliver all expert reports on or before March 31, 2023, or within 15 days of receipt of the opposing party’s materials and responses arising from the Examinations for Discovery and documentary production requirements, whichever is later.
(2) The parties shall deliver all reply evidence and all other written evidence on or before May 8, 2023.
(3) Further written evidence, witness statements and expert reports may be served and filed only with leave of the Tribunal and, where leave is granted, shall be served and filed at least five calendar days before the date an expert witness who will give oral evidence is to be called.
Unless the Tribunal orders otherwise, no expert shall give oral evidence at the hearing without first having,
(a) served and filed written evidence, and
(b) served and filed an expert report.
A party who serves and files a witness statement or expert report must have the witness present at the hearing to testify unless the party advises the Tribunal and the parties served with the witness statement or expert report that it is not to be part of the record.
If a party intends to call a lay person as a witness, it shall serve on all other parties and file with the Tribunal a witness statement on or before March 31, 2023.
Amendment of Written Evidence
Amendments to expert reports or witness statements will be permitted only by motion, with notice to all parties.
Notice to Admit
Any party choosing to exercise its right to serve a request to admit facts or documents pursuant to Rule 51 of the Rules of Civil Procedure incorporated by reference in Board Rule 27 shall serve such request or requests on the party or parties opposite on or before June 2, 2023.
Witnesses
A party who intends to call witnesses, whether or not by way of summons, shall provide to the other parties and file with the Tribunal a list of the witnesses to be called and shall advise all other parties, at least ten days before the commencement of its case, of the order in which they are intended to be called.
Counsel shall use best efforts to ensure that the witness who will follow the witness who is testifying shall be available in the hearing room to take the stand immediately upon the completion of the testimony of the prior witness.
Document Book and Court Reporter
The parties shall prepare a Joint Document Book to be filed with the Tribunal on June 23, 2023.
The Respondent shall arrange for the service and payment of a certified Court Reporter by June 23, 2023.
Presentation of Evidence at the Hearing
The order of presentation of evidence shall be:
(a) case for the Claimants;
(b) case for the Respondent; and
(c) reply by the Claimants.
Reply evidence shall not include evidence which was or should have been led in chief.
Adjournments
Adjournments will not be granted during the hearing except on the grounds of serious hardship or illness.
Written Submissions
Counsel shall provide the Tribunal with three copies of a written summary of their oral submissions at the time of presenting the submissions.
Attached hereto as Schedule "A" is a Timetable setting out the key dates described in this Order by which the steps in this proceeding shall be completed.
This Member is not seized. So orders the Tribunal.
O.L.T. Case No.: OLT-22-002735
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:
ASHFAQ AHMED KURD and NUSRAT PARVEEN KURD
Claimants
- and -
REGIONAL MUNICIPALITY OF HALTON
Respondent
TIMETABLE RE PROCEDURAL ORDER HEARING DATE: July 10, 2023
| Steps to be completed | Date to be completed by |
|---|---|
| Exchange of Affidavits of Documents | August 31, 2022 |
| Examinations for Discovery completed | October 7, 2022 |
| Undertakings to be answered | November 30, 2022 |
| Notify the Board if motion re discovery process not necessary | December 13, 2022 |
| Any Motions arising out of the discovery process | January 13, 2023 |
| Any requests to amend pleadings to be brought before the Board by way of motion | January 27, 2023 |
| Any production or further examination for discovery arising from answers to undertakings or any motion before the Board | January 27, 2023 |
| Delivery of expert reports / witness lists / any non-party lay witness statements | March 31, 2023 |
| Delivery of reply evidence and all other written evidence | May 8, 2023 |
| Service of Request to Admit facts or documents | June 2, 2023 |
| Arrange for a Court Reporter (Respondent) | June 23, 2023 |
| Joint Document Book | June 23, 2023 |
| Hearing – five (5) days | July 10, 2023 to July 14, 2023 |