Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 22, 2022
CASE NO(S).: OLT-22-002333 (Formerly) LC180027
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: CT REIT Limited Partnership
Respondent: City of Toronto and Toronto Transit Commission
Subject: Land Compensation
Property Address/Description: 1015-1025 Lake Shore Boulevard East
Municipality: City of Toronto
OLT Case No.: OLT-22-002333
Legacy Case No.: LC180027
OLT Lead Case No.: OLT-22-002333
Legacy Lead Case No.: LC180027
OLT Case Name: CT REIT Limited Partnership v. Toronto (City)
Heard: March 31, 2022 by video hearing
APPEARANCES:
Parties Counsel
City of Toronto and Toronto Transit Commission (“Respondents”) C. Barnett
CT REIT Limited Partnership (by its General partner CT REIT GP CORP.), Canadian Tire Corporation Limited, Peter M. Oliver Sales Ltd., and Mark’s Work Warehouse Ltd. (“Claimants”) R. Uukkivi
MEMORANDUM OF ORAL DECISION DELIVERED BY R.G.M. MAKUCH ON MARCH 31, 2022 AND ORDER OF THE TRIBUNAL
MOTIONS
Claimants’ Motion
1The Claimants, CT REIT Limited Partnership (by its general partner CT REIT GP CORP.), Canadian Tire Corporation Limited (“Canadian Tire”), Peter M. Oliver Sales Ltd. and Mark’s Work Warehouse Ltd. have brought a Motion for an order of the Tribunal:
compelling the Respondents, City of Toronto (“City”) and the Toronto Transit Commission, to answer all of the outstanding undertakings and questions taken under advisement given during the examination for discovery of Paris Savides immediately or within such other time frame as the Tribunal deems just; and
awarding the Claimants their costs of this Motion on a scale and amount that is just.
2Counsel for the Claimants state that this is a claim for compensation for injurious affection where no land is taken and the central issue in the claim is the quantum of business losses sustained by Canadian Tire because of the construction by the Respondents of the Leslie Barns Streetcar Maintenance and Storage Facility at the southeast corner of Leslie Street and Lakeshore Boulevard East.
3The Respondents deny, among other things, that Canadian Tire is entitled to any compensation as a result of the construction and there was no impact to Canadian Tire’s businesses as a result of the construction.
4The Claimant Canadian Tire argues that despite numerous attempts by it to move the claim forward, it has been faced with numerous delays by the Respondents and was forced to bring a motion back in July 2021, requesting an order of the Tribunal for the issuance of a Procedural Order, requiring, among other matters, the holding of examinations for discovery. The Tribunal ordered the issuance of a Procedural Order, as agreed upon by both parties.
5Amongst other matters, the Procedural Order required examinations for discovery to be completed by January 23, 2022, with answers to undertakings to be completed on or before February 23, 2022, and any motions related to undertakings and refusals to be served and filed by March 23, 2022.
6Due to the retainer of new external legal counsel by the Respondents in and around December 23, 2021, the parties agreed to extend the deadline for examinations for discovery on the condition that no other procedural steps would be impacted as it is imperative for the hearing to proceed as scheduled on September 6, 2022.
7On February 23, 2022, Paris Savides attended his examination for discovery as the Respondents representative and provided 17 undertakings and 16 questions/requests were taken under advisement. The Respondents have not provided answers to these undertakings or questions taken under advisement.
8Counsel for the Claimants asserts that all the questions taken under advisement are proper questions relevant to the issues in the claim and should be answered.
9Canadian Tire requires direction from the Tribunal to ensure undertakings are answered by a fixed date and with respect to all questions taken under advisement to ensure there is no undue delay in this proceeding and that the hearing date is not threatened.
10The material before the Tribunal on this Motion are the following:
the Claimants’ Motion Record dated March 23, 2022, including the Notice of Motion dated March 23, 2022 and the Affidavit of Alvin Hui affirmed March 23, 2022;
the transcript of the examination for discovery of Mr. Savides dated February 23, 2022;
the Refusals and Undertakings Chart of Mr. Savides dated March 23, 2022.
City Motion
11The City also brings a Motion for an order of the Tribunal compelling the Claimants to answer all of the outstanding undertakings and questions taken under advisement and refused given during the examinations for discovery of Peter Oliver and Victor Iaccino, representatives for the Claimants.
12The materials before the Tribunal on the City’s Motion consist of:
the City’s Motion Record dated March 24, 2022, including the Notice of Motion dated March 24, 2022 and the Affidavit of Glenn Tautrims sworn March 24, 2022;
the Chart of Undertakings and refusals of Victor Iaccino and Peter Oliver; and
the transcripts of the Examinations for Discovery of Messrs. Oliver and Iaccino dated February 16 and 22, 2022 respectively.
13The City states that Mr. Oliver was examined for discovery on February 16, 2022 and gave 10 undertakings, 10 questions were taken under advisement and two questions were refused. Mr. Iaccino at his examination for discovery on February 22, 2022 gave 23 undertakings, 22 questions were taken under advisements and two questions were refused.
14The City argues that the losses claimed in this matter are entirely business losses and the undertakings given and in particular, the questions taken under advisement and refusals relate to information needed for a proper understanding and assessment of the losses claimed. Information requested includes financial information for years outside of the period of loss claimed in order to properly understand and assess the assumptions that underlie the losses claimed. Properly understanding for comparison purposes, the actual sales following the loss period is vital to properly assess the validity of the assumptions around the rate of growth.
15The City further argues that the preparation of a business loss report in the absence of this financial information, in addition to other specified information such as the unredacted dealer agreements and the Canadian Tire studies identified during the examination for discoveries, could lead to inaccurate and incomplete information related to the losses claimed. The City states that in some cases, information for the years outside the loss period has been provided by some of the claimants, but not by others.
16Requests for much of the information were made in July 2021, as part of the Motion that led to the approval of the procedural order, and so have been in the knowledge of the Claimants for an extended period of time.
RESOLUTION OF MOTIONS
17The Tribunal notes that neither the City nor the Claimants filed Responses to the Motions and was advised at the commencement of the Case Management Conference that the parties had resolved their differences with respect to the issues raised in the Motions and subsequently advised that they would not be seeking an order of the Tribunal respecting these Motions.
ORDER
18The parties have advised that they have settled this matter. The Tribunal is closing this file.
19It is so ordered.
“R.G.M. Makuch”
R.G.M. Makuch
VICE-CHAIR
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.