Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
July 21, 2022
CASE NO(S).:
OLT-22-003081
(Formerly LC140043)
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant:
413464 Ontario Limited
Respondent:
City of Windsor
Subject:
Land Compensation
Property Address/ Description:
1245 Provincial Road and 1065 Cabana Road East
Municipality:
City of Windsor
OLT Case No.:
OLT-22-003081
Legacy Case No.:
LC140043
OLT Lead Case No.:
OLT-22-003081
Legacy Lead Case No.:
LC140043
OLT Case Name:
413464 Ontario Limited v. Windsor (City)
Heard:
July 07, 2022 via video hearing
APPEARANCES:
Parties
Counsel
413464 Ontario Limited (“Claimant”)
M. Shulgan
City of Windsor
A. Farough
MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON JULY 7, 2022
1This is the second Case Management Conference (“CMC”) in this matter held by Telephone Conference Call (“TCC”) on July 7, 2022.
2This proceeding involves the Claimant’s claims arising in part from the expropriation by the City by notice issued September 19, 2011 of the property known municipally as 1245 Provincial Road and 1065 Cabana Road East in the City. The Claimant seeks compensation for the value of lands taken for the reconstruction of a road and injurious affection under the Expropriation Act, R.S.O. 1990, c. E26, and its Claim was issued on October 14, 2014.
3Counsel for the Parties have submitted a draft Procedural Order (“PO”) on consent and sought a six (6)-day hearing for the adjudication of the claims described in paragraph [2] above. The Parties are reminded that the mediation facilities of the Ontario Land Tribunal are available to assist them in resolving all or part of this proceeding and are encouraged to contact the Tribunal if they wish to consider mediation.
4The hearing of this proceeding shall commence on Tuesday, November 22, 2022 for a period of six (6) days ending on Tuesday, November 29, 2022.
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://meet.goto.com/692665589
Access code: 692-665-589
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: +1 (647) 497-9373 or Toll Free at 1-888-299-1889 . The access code is 692-665-589.
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.
9Subsequent to the TCC, counsel for the Parties submitted a revised PO amended to reflect the hearing dates detailed in paragraph [4] above.
ORDER
10The Tribunal Orders that the Procedural Order appended as Attachment 1 hereto shall govern this proceeding.
“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.
Procedural Order for Video Hearings
ISSUE DATE: CASE NO(S).: OLT-22-003081
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26 as amended.
Claimant: 413464 Ontario Limited
Respondent: City of Windsor
Subject: Land compensation
Property Address: 1245 Provincial Road and 1065 Cabana Road East
Municipality: City of Windsor
OLT Case No.: OLT-22-003081
Legacy Case No.: LC140043
OLT File No.: OLT-22-003081
OLT Case Name: 413464 Ontario Limited v. Windsor (City)
- 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 shall commence on Tuesday, November 22, 2022 for a period of six (6) days ending on Tuesday, November 29, 2022.
Parties 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://meet.goto.com/692665589 Access code: 692-665-589
Parties 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
Persons 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: +1 (647) 497-9373 or Toll Free at 1-888-299-1889. The access code is 692-665-589.
Individuals 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.
The parties’ initial estimation for the length of the hearing is 6 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.
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.
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, 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.
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
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 28, 2022 and in accordance with paragraph 19 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.
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. 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 7, 2022.
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 12 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..
On or before October 14, 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 19 below.
On or before October 14, 2022, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 19 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
On or before October 14, 2022, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 19 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
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.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before 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.
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
ATTACHMENT 1
LIST OF PARTIES
- 413464 Ontario Limited
Counsel: Myron W. Shulgan Q.C.
Strosberg Sasso Sutts, LLP
1561 Ouellette Avenue
Windsor, ON N8X 1K5
Tel: 519 561-6223
Fax: 866 316-5310
- The Corporation of the City of Windsor
Counsel: The City Solicitor,
400 City Hall Square, Suite 201
Windsor, ON N9A 7K6
Tel: 519 255-6100 ext. 6377
Fax: 519 255-6933
ATTACHMENT 2
ISSUE LIST
Market value of the lands taken
Injurious affection (if any) suffered by the Claimant resulting from the road reconstruction.
ATTACHMENT 3
Order of Evidence
Case of 413464 Ontario Limited
Case of the City of Windsor
Reply from 413464 Ontario Limited
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.