Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: August 23, 2022
CASE NO(S).: OLT-22-002362
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriation Act, R.S.O. 1990, c. E.26, as amended
Claimant: Motek Cultural Initiative
Respondent: Metrolinx
Subject: Land Compensation
Property Address: 1 Atlantic Avenue
Municipality: City of Toronto
OLT Case No.: OLT-22-002362
OLT Lead Case No.: OLT-22-002362
OLT Case Name: Motek Cultural Initiative v. Metrolinx
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Motion By: Metrolinx
Purpose of Motion: Request for Dismissal
Subject: Land Compensation
Municipality: City of Toronto
OLT Case No.: OLT-22-002362
OLT Lead Case No.: OLT-22-002362
OLT Case Name: Motek Cultural Initiative v. Metrolinx
Heard: July 12, 2022 by Video Hearing
APPEARANCES:
Parties
Counsel
Metrolinx
C. Higgs / A. Flarity
Motek Cultural Initiative (“Claimant”)
C. Harris / L. Cummings
DECISION DELIVERED BY BLAIR S. TAYLOR AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Metrolinx registered a Plan of Expropriation for the lands known municipally as 1 Atlantic Avenue (“Subject Lands”) on May 18, 2021, where the Claimant occupied Unit 216.
2On or about February 16, 2022, the Claimant filed its Notice of Expropriation and Statement of Claim for $830,000.00 compensation for injurious affection and disturbance damages as a tenant.
3On or about May 9, 2022, Metrolinx brought a Motion for Summary Judgment on the basis that the Claimant was not an “owner” but rather a bare licensee and therefore not entitled to make a claim for compensation under the Expropriations Act (“EA”) and that there was no genuine issue to be heard.
4On or about July 5, 2022, a Responding Motion Record was filed by the Claimant contending that the Claimant was an “owner and/or a tenant” entitled to make a claim for compensation and that the Motion should be dismissed and that Summary Judgment should be granted for the Claimant (“boomerang motion”).
DECISION
5For the reasons set out below, the Tribunal finds that there is a genuine issue for trial and therefore will:
a. Dismiss the Metrolinx Summary Judgment Motion;
b. Dismiss the Claimant’s boomerang Motion; and
c. Direct that costs be dealt with by the Member at the hearing on the merits.
STATUTORY REGIME
6These are the relevant definitions from s. 1 of the EA:
“Land” includes any estate, term, easement, right or interest in, to, over or affecting land;
“Owner” includes a mortgagee, tenant, execution creditor, a person entitled to a limited estate or interest in land, a guardian of property, and a guardian, executor, administrator or trustee in whom land is vested;
“Registered Owner” means an owner of land whose interest in the land is defined and whose name is specified in an instrument in the proper land registry or sheriff’s office, and includes a person shown as a tenant of land on the last revised assessment roll;
“Tenant” means a lessee or occupant occupying premises under any tenancy whether written, oral, or implied.
(Emphasis added)
7The EA sets out a process by which an expropriation is to proceed. S. 6(1) provides that an expropriating authority shall service notice of its application for approval to expropriate upon each registered owner and publish notice once a week for three consecutive weeks in a newspaper.
8S. 13 provides that where land is expropriated, the expropriating authority shall pay the owner such compensation as is determined in accordance with the EA.
9S. 16 recognizes that there may be separate interests in the land expropriated and the market value for each separate interest shall be valued separately.
10The Tribunal notes s. 18(1) mandates payment to an owner other than a tenant for disturbance arising out of the expropriation and s. 18(2) mandates payment to a tenant for disturbance.
11And finally from the EA, s. 29 provides that the Tribunal shall determine any compensation in respect of a notice of arbitration.
12The Tribunal has Rules of Practice and Procedure (“Tribunal Rules”) and Tribunal Rules 26.1 to 26.27 deal with Expropriation Proceedings and of note for this matter is Tribunal Rule 26.16 which states that the Rules of Civil Procedure apply to such Tribunal proceedings.
RULES OF CIVIL PROCEDURE
13From the Rules of Civil Procedure (“Civil Rules”) the Tribunal would first note in s. 1.04 that the Civil Rules are to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
14Turning to Civil Rule 20: Summary Judgment, the following is provided:
20.01(1) A plaintiff may, after the defendant has delivered a statement of defence or served notice of a motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.
(3) A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgement dismissing all or part of the claim in the statement of claim.
15Then Civil Rule 20.04 (2) states:
20.04 (2) The Court shall grant summary judgment if,
(a) The court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
(b) The parties agree to have all or part of the claim determined by summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
16Then Civil Rule 20.04 (2.1) provides:
In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial;
Weighing the evidence;
Evaluating the credibility of a deponent; and
Drawing any reasonable inference from the evidence.
BACKGROUND AND CONTEXT
17The Tribunal observes that the Subject Lands were owned by Minto Properties Inc. (“Minto”). The Subject Lands are described to the Tribunal as being a 2 storey commercial building having a land area of about 7,194 square metres with about eight or nine tenants.
18The Claimant is designated as a charitable organization by the Canada Revenue Agency.
19The Claimant occupied Unit 216.
20The Province issued an Order in Council on or about December 17, 2020 approving the expropriation by Metrolinx of a number of properties including the Subject Lands.
21Metrolinx served notice of the expropriation on Minto and the other tenants on or about May 25, 2021.
22The Claimant was not sent this notice.
23The Claimant received a letter from Minto dated June 21, 2021 advising that its tenancy will be impacted by Metrolinx.
24The Claimant made inquiries and requested a copy of the expropriation notice and this was provided by Metrolinx’s counsel on or about June 28, 2021, advising that Metrolinx intended to take possession August 31, 2021.
SUMMARY JUDGMENT GROUNDS
25Metrolinx’s Motion Record is Exhibit 3 and it sets out the grounds for the Summary Judgment and includes the affidavit of Paul Baron, the senior Vice President, Operations at Minto Properties Inc.
26That affidavit attests that Minto purchased the Subject Lands in 2011 for the purposes of redevelopment and that occupancy of the Subject Lands was limited for new or existing tenants and licensees to permit the Subject Lands to be vacated on notice for redevelopment, and that Minto had no reason to give any party an indefinite tenancy or occupancy of a unit.
27The affiant also states that Minto did not at any time lease or license any portion of the Subject Lands to the Claimant for an indefinite term.
28In terms of the Claimant’s occupancy, the affidavit notes that the Claimant initially occupied Suite 805 at 94 Cumberland Street, (another Minto property) and that there were Temporary Occupancy Licenses (“TOLs”): November 16, 2012 to August 31, 2013, and then September 1, 2014 to February 28, 2015 for that unit.
29As 94 Cumberland Street was being redeveloped, no further occupancy was possible.
30In or about February 2015, the Claimant commenced occupying Unit 210 at the Subject Lands under a TOL dated February 24, 2015 (to May 31, 2015), and subsequently Unit 216 by a TOL dated July 1, 2016 to June 30, 2017.
31This was followed by a further TOL for Unit 216 dated March 1, 2019 to June 2019, and then one from July 1, 2019 to September 30, 2019.
32The Motion Record asserts that the Claimant’s occupation of the Subject Lands was limited to an occupancy arrangement, and that the affidavit of Mr. Baron confirms that the Claimant did not enjoy any interest in the Subject Lands as a tenant or otherwise.
33Metrolinx submits that the TOLs between the Claimant were purposefully drafted to avoid creating a legal tenancy in land and do not meet the essential elements of a tenancy including:
The extent of rights granted by Minto were non-exclusive;
No rent was paid by the Claimant;
There was no right to quiet possession;
There was no specified term; and
There was no right to extend or assign.
34Thus it is argued that the Claimant did not enjoy any interest in the Subject Lands, and was merely a short-term license holder and not an owner under the definition of “owner” in the EA.
35As a non-owner, Metrolinx submits that: the Claimant is not entitled to make a claim under the EA; that there is no genuine issue to be heard; the lack of standing is a complete bar to the Claimant making a claim under the EA; and the Summary Judgment Motion should be allowed.
RESPONSE
36The Claimant’s Response notes that the Claimant was founded in 2011 and is designated as a Canadian charity.
37The affidavit of Ravid Dahan found in Exhibit 4 provides that the goal of the Claimant is to foster appreciation for, and improve perceptions of, Israel across multicultural communities by showcasing contemporary Israeli music. The Claimant does so through the organization of concerts, galas, festivals and other programming.
38The affidavit notes that the Claimant has since its founding had a close relationship with Minto, and that employees and executives of Minto have been members of the Claimant’s Board of Directors. It also states that Minto has always provided the Claimant with office space that it used for its operations.
39The first office space was at 94 Cumberland from 2012 to 2015, and then with redevelopment coming to that property, the Claimant co-ordinated with Minto to secure new office space at the Subject Lands beginning with Unit 210 and later moving to Unit 216.
40Notwithstanding the TOLs referenced by Metrolinx, the Claimant points out that there were many periods of time when there were no written agreements in place with Minto, but that the Claimant nonetheless occupied the Subject Lands, first at Unit 210 and then in Unit 216, continuously up to the expropriation in 2021.
41The affidavit also states that the relationship between the Claimant and Minto was mutually beneficial, and while Minto charged the Claimant with nominal rent, the Claimant recognized Minto in its marketing materials and programs as one of its most valuable sponsors thus providing marketing and promotional benefit to Minto.
42With regard to the premises, the Claimant states that it had keys to the units, that Minto assisted with the renovations to the Claimant’s Unit, that the Claimant participated in Minto’s Commercial Tenant Satisfaction Survey, that the Claimant provided Minto with the forms for its “workplace reintegration plan” and for contact tracing during the Covid-19 pandemic, and that it was Minto that wrote to the Claimant as their “valued tenant” on June 21, 2021 to provide an update on the impact of the Ontario Line and how it would affect their tenancy.
43Notice of the expropriation only came from Metrolinx’s counsel dated June 28, 2021, after the expropriation plan had been registered and after all the tenants had received their notices, and after the Claimant had made inquiries based on the material provided by Minto.
44Counsel for the Claimant submits that the Claimant was a tenant of Minto for 11 years with a shared understanding of the mutually beneficial terms of the tenancy. The basics of the agreement were that Minto would provide office space at its property and in exchange the Claimant would pay nominal rent, and provide a marketing and promotional benefit to Minto.
45While there were TOLs for both 94 Cumberland and the Subject Lands, counsel noted that the TOLs cover less that half the time that the Claimant was in occupation of its premises, and it never vacated its premises until the expropriation.
46From this it is submitted that when there were no written agreements in place that they were confirmed by way of oral agreement and/or through implications based on the longstanding relationship between them. For example counsel cites that the Claimant’s lease was extended by an additional year at 94 Cumberland from September 2013 to August 2014 by oral agreement.
47For the Claimant, it is submitted that it had keys to the premises, that it insured the premises, and improvements were made to the premises and done with Minto’s knowledge and assistance.
48Moreover it is claimed that Minto treated the Claimant as it did all its other tenants: it participated in the Commercial Tenant Satisfaction Survey and the “workplace reintegration plan, and later it was Minto that advised the Claimant (addressing it as a valued tenant) of the expropriation.
49On this basis, it is argued that the Claimant is an “owner” as the Claimant meets the definition of “tenant” in the EA as it occupied the Subject Lands, under a tenancy that was oral or implied and thus it is entitled to make a claim under the EA.
50In the alternative, it is argued even if the record does not establish the Claimant as an “owner”, it does raise a genuine issue for trial, which alone is sufficient to dismiss the Metrolinx motion.
BOOMERANG
51The Claimant’s Response to the Motion for Summary Judgment (Exhibit 4) pleads that the Tribunal has the jurisdiction to grant summary judgment in favour of either party to the motion whether formally requested or not (the boomerang summary judgment), and such a summary judgment should be awarded in favour of the Claimant.
52Counsel for the Claimant submits the parties are presumed to put their best foot forward in a Summary Judgement Motion and the Tribunal is entitled to treat the evidentiary record as complete and make a determination on the Claimant’s claim based on that record.
53In that regard counsel points out that Metrolinx put forward no evidence disputing the amount of the compensation being claimed by the Claimant whereas the Claimant has submitted extensive evidence with regard to moving, storage, and other costs and damages that it has incurred and will incur as a result of the expropriation.
54Counsel further submits that as the evidence on compensation is essentially uncontested and that as Metrolinx is presumed to have put its best evidentiary foot forward, the Tribunal is entitled to weigh the evidence and make a finding in favour of the Claimant, which counsel suggests would be the best opportunity for a fair, just, expeditious, and cost-effective resolution of this matter.
55Exhibit 5 is the Reply from Metrolinx and it contains two affidavits: the first from Lawrence Wong and the second from Victoria Deo. Mr. Wong is the Senior Property Acquisitions Officer for Metrolinx and Ms. Deo is a law clerk at the law firm representing Metrolinx.
56The two affidavits provide details with regard to requests for details of the Claimant’s claim for damages and availability for cross examination, and also the results of contacts with various vendors to confirm costs or estimates of costs provided by the Claimant.
57With regard to the costs or estimates of costs provided to the Claimant by a number of vendors, Exhibit 5 shows that in some cases no response was received from a vendor, in other cases the vendor had no record of providing services, and in other cases that the Claimant was not a client in their client base.
58With regard to the cross examination, it appears that cross examination was only able to be completed on July 11, 2022 (with the hearing being held July 12, 2022).
59After the hearing was completed the Tribunal was provided with the transcript of the cross examination of Ravid Dahan Motek (by videoconference) now marked as Exhibit 12, and which has been reviewed by the Tribunal.
SUMMARY JUDGMENT
60Both parties cited the Supreme Court of Canada decision in Hyrniak v. Mauldin 2014 SCC 7 (“Hryniak”) as guidance with regard to summary judgments:
49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
66 On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.
EXPROPRIATIONS ACT
61Additionally, as the matter before the Tribunal involves a claim for compensation arising out of an expropriation, the Tribunal was referred to the Supreme Court of Canada decision of Dell Holdings Limited v. Toronto Area Transit Operating Authority 1997 CanLII 400 (SCC), [1997] 1S.C.R. 32 (“Dell”) where the Court under the heading of Interpretation of Expropriation Statue said:
20 The expropriation of property is one of the ultimate exercises of governmental authority. To take all or part of a person’s property constitutes a severe loss and a very significant interference with a citizen’s property rights. It follows that the power of an expropriating authority should be strictly construed in favour of those whose rights have been affected. This principle has been stressed by eminent writers and emphasized in decisions of this court.
21 Further since the Expropriations Act is a remedial statute, it must be given a broad and liberal interpretation consistent with its purpose. Substance, not form, is the governing factor… In Laidlaw v. Municipality of Metropolitan Toronto, 1978 CanLII 32 (SCC), [1978] 2 S.C.R. 736, at p. 748, it was observed that “[a] remedial statue should not be interpreted, in the event of an ambiguity, to deprive one of common law rights unless that is the plain provision of the statute”.
(Emphasis added)
FACTS
62The following appear to be the substantive facts with regard to this matter and upon which the Tribunal bases its decision for this matter.
The Claimant is a designated Canadian charity;
From about 2012 to November of 2021, the Claimant occupied office units at two of Minto’s commercial office buildings: first at 94 Cumberland Street, and then at the Subject Lands;
One of Minto’s senior management was a member of the Claimant’s Board of Directors and Advisory Board;
During that span of time, and the use of those office units, some of that time was pursuant to TOLs which inter alia provided:
a non-exclusive license;
a nominal license fee (sometimes $1.00);
were non-assignable and non-transferable; and
provided for termination on 30 days (or less) on written or verbal notice.
Notwithstanding the lapsing of the TOLs, the Claimant continued without interruption to occupy the premises apparently based either on a mutual understanding or an oral agreement;
The Claimant had keys to the units;
The Claimant insured the units;
Alterations were made to one of the units in 2016 with the knowledge and apparently the assistance of Minto;
The Claimant appears to have had exclusive possession of the units;
The Claimant was the recipient of invitations from Minto to participate in its Commercial Tenant Satisfaction Survey in 2016, and its “workplace reintegration plan” in November 2020 during Covid;
Minto received corporate recognition in programs and publications of the Claimant;
The affiant in the Metrolinx Motion Record had no personal involvement with the Claimant and appears to have assumed his new role in 2021.
COMMENTARY AND FINDINGS
63Counsel for Metrolinx posits that this is a straight-forward case and that the Claimant is nought but a bare licensee whose occupation of the Subject Lands is not embraced by the EA.
64The Tribunal does not agree that this is a straight-forward case.
65Notwithstanding the plethora of cases and authorities provided to the Tribunal, none were on all fours with this matter.
66To the Tribunal, this is an indicator of a unique factual situation.
67The first case put to the Tribunal by counsel for Metrolinx was Read Marketing Inc. v. British Columbia (Minister of Transportation & Highways) 1995 Carswell BC 2577 56 L.C.R. 55 (“Read”). To the Tribunal, of critical note with regard to this case is firstly the fact that it was decided before the Supreme Court of Canada decision in Dell with regard to the interpretation of the Ontario EA, and secondly that the British Columbia Expropriation Act defines “owner” differently than the definition found in the Ontario EA.
68At para 24 of Read, there the British Columbia Expropriation Compensation Board noted the relevant portions of the definition of “owner” from s. 1 of the British Columbia Expropriation Act:
“owner”, in relation to lands, means
(a) a person having an estate, interest, right or title in or to the land…
(c) a person who is in legal possession or occupation of land, other than a person who leases residential premises under an agreement having a term of less than one year.
(Emphasis added).
69Whereas the Ontario EA definition of “owner” is:
“Owner” includes a mortgagee, tenant…
(Emphasis added).
70The Ontario EA definition is a non-exhaustive definition, and such non-exhaustive definitions are used to expand or narrow the ordinary meaning of terms, to deal with borderline applications of terms or to illustrate their range of application by setting out examples (See Ruth Sullivan: The Construction of Statutes, 7th Ed, Chapter 4 page 13).
71Thus to the Tribunal, Read is readily distinguishable from the facts of this matter.
72To the Tribunal, this case involves a unique factual situation.
73While on one hand the TOLs would appear at first blush to establish licenses, they do not in fact cover the entirety of the Claimant’s occupation of the Subject Lands and do not even account for about half of the time of occupation. And yet notwithstanding the lapsing of the TOLs, the occupation of the Subject Lands went on, based on, it is argued, an oral agreement or in other instances, just a mutual understanding.
74With regard to compensation, it appears that Minto benefitted through its corporate recognition in the programs and events that the Claimant sponsored.
75Moreover notwithstanding the wording of the TOLs, the Claimant appears to have enjoyed exclusive possession of the units, and appears to have been treated at least in part by Minto as a tenant.
76In this regard the Tribunal notes that the EA specifically defines “tenant” as meaning “a lessee or occupant occupying premises under any tenancy whether written, oral or implied” (emphasis added), and the Ontario definition of “owner” includes a tenant, and a person entitled to a limited estate or interest in land.
77Counsel for the Claimant posits that the Tribunal should have regard to the Nova Scotia case of Raysue Enterprises Ltd. v. Nova Scotia, 1991 CarswellNS 788, 47 L.C.R. 133 (“Raysue”). Although decided before Dell, while the Province argued that Raysue was merely a licensee, the Board found that the substance of the transaction was a franchise agreement coupled with a leasehold agreement for the land and that in practice the claimant there exercised exclusive possession subject only to the usual rights reserved to landlords.
78Counsel for the Claimant argued that the Supreme Court of Canada has clearly enunciated in Dell that it was substance and not form that would be the governing factor, and Raysue had made such a determination and the Tribunal ought to find here that the Claimant was a tenant occupying premises under any tenancy whether written, oral, or implied, and thus was an owner and entitled to its claim for compensation under the EA
79Counsel for the Claimant submitted that the substance of the arrangement between the Claimant and Minto brought the Claimant into that definition.
80Counsel posed the issue of substance to the Tribunal in this colloquial fashion: “if it looks like a duck, if it walks like a duck, and quacks like a duck, it is a duck.”
81To the Tribunal there is not at this time enough evidence for the Tribunal to make the necessary findings of fact to determine the actual character of the Claimant’s use and occupation of the premises. However there is certainly enough evidence for the Tribunal to determine that there is a genuine issue to be considered that is ripe for the adjudicative process and that issue is: what was the true nature of the use and occupation of the premises in the Subject Lands by the Claimant?
82To that end, the Tribunal does not find it appropriate at this time to utilize any of the discretionary powers and finds that it would be in the interest of justice for this matter to proceed to a full hearing with viva voce evidence.
83Thus the Tribunal will dismiss the Summary Judgment Motion.
84Turning to the boomerang motion, the Tribunal having considered all the materials and is not satisfied that the claims for compensation are fully made out. There appear to be a number of quotes and estimates provided but one would have expected much more detailed accounts and actual expenditures/receipts for such a motion to be successful.
85Thus the Tribunal will dismiss the boomerang motion.
86With regard to costs, the Tribunal directs that they will be considered by the member hearing the matter on it merits.
DECISION
87Thus the Tribunal will:
(a) dismiss the Metrolinx Summary Judgement Motion;
(b) dismiss the Claimant’s boomerang Motion; and
(c) direct that costs be dealt with by the member at the hearing on the merits.
88This is the Order of the Tribunal.
“Blair S. Taylor”
BLAIR S. TAYLOR
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.