Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: September 08, 2022
CASE NO(S).: OLT-22-002406 (Formerly LC200010)
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Claimant: Obico Rail Yard (GP) Inc.
Respondent: City of Toronto
Subject: Land Compensation
Property Address/Description: Part of Lot 7, Concession 4
Municipality: City of Toronto
OLT Case No.: OLT-22-002406
Legacy Case No.: LC200010
OLT Lead Case No.: OLT-22-002406
Legacy Lead Case No.: LC200010
OLT Case Name: Obico Rail Yard (GP) Inc. v. Toronto (City)
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Motion By: Obico Rail Yard (GP) Inc.
Purpose of Motion: Request for Determination / Directions
Subject: Land Compensation
Municipality: City of Toronto
OLT Case No.: OLT-22-002406
Legacy Case No.: LC200010
OLT Lead Case No.: OLT-22-002406
Legacy Lead Case No.: LC200010
Heard: September 1, 2022 in writing
APPEARANCES:
Parties
Counsel
Obico Rail Yard (GP) Inc. and Dream Asset Management Inc. (“Obico”/“Dream”)
Christopher Williams, Ajay Gajaria David Neligan and N. Jane Pepino (in absentia)
City of Toronto (“City”)
Andrew Baker
DECISION DELIVERED BY WILLIAM R. MIDDLETON ON SEPTEMBER 8, 2022 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This written motion hearing arises out of the Tribunal’s Decision issued June 24, 2022 (“June Decision”). The relevant history and facts pertaining to the underlying proceeding are summarized in the June Decision and will not be repeated here.
2The Tribunal directed that the Parties’ respective requests for directions pertaining to their disputes arising from the June Decision (“Motions for Directions”) be dealt with in writing and that both Parties’ submissions be filed on or before September 1, 2022.
3The materials delivered to the Tribunal for the Motions for Directions were the following:
(i) Submissions of the City dated August 26, 2022, comprising 5 pages;
(ii) Affidavit of RJ Bantayan-Sison on behalf of the City dated August 26, 2022, including Exhibits A to D thereto inclusive, comprising 36 pages;
(iii) Written Submissions of Obico, including Appendices A to D thereto inclusive, dated August 26, 2022, comprising 83 pages; and
(iv) Reply Submissions of the City, dated September 1, 2022, comprising 3 pages.
SUMMARY OF THE DISPUTES
4The Parties have differing interpretations of certain Orders made in the June Decision.
5The Parties’ dispute concerns the meaning of the Orders set out in paragraph [29] (i) and (ii) (b) which were as follows:
“The Tribunal Orders as follows:
(i) the City’s representative Mr. Michael Stevenson shall reattend for examination for discovery to answer ‘Refusal No. 5’ from his examination for discovery conducted on February 15, 2022, being “To advise what the TTC [i.e. the City] is paying for the HONI lands?” and any relevant, permissible questions arising from his answer, and to produce all relevant non-privileged documents related thereto;
(ii) the representative of Obico / Dream, Mr. Tony Medeiros shall reattend for examination for discovery to answer the following questions from his examination for discovery conducted on February 16 and February 17, 2022 and to produce for inspection all relevant non-privileged documents related thereto:
(a) ….
(b) Questions refused by Mr. Medeiros regarding valuation work and the Claimant’s pleading at para. 37 of the Statement of Claim of Obico / Dream regarding: the conclusion on value as determined by CBRE, an independent appraisal expert firm with supporting expert evidence supplied to CBRE from a number of other firms, including Urban Strategies, an independent planning expert…”
6Obico’s counsel argues that the City has not satisfactorily responded to the Order made in paragraph [29] (i) of the June Decision.
7The City’s counsel maintains that Obico has not delivered the documents referred to in the Order made in paragraph [29] (ii) (b) of the June Decision.
HAS THE CITY RESPONDED SATISFACTORILY TO THE PARAGRAPH [29] (i) ORDER OF THE JUNE DECISION?
8In their submissions, counsel for Obico allege that: “…Despite the Tribunal’s clear Order, the City has yet to produce documents related to this issue”.
9In their original submissions and reply submissions, the City’s counsel has not taken issue with the argument of counsel for Obico set out in paragraph [8] above. Therefore, the Tribunal must assume that the City does not contest Obico’s argument.
10However, given the Order already contained in paragraph [29] (i) of the June Decision, in the Tribunal’s view no further Order is required. The Tribunal does caution the City’s counsel that his client ought to produce the necessary documents as soon as is possible given the rapidly approaching October 2022 merits hearing date in this proceeding.
HAS OBICO DELIVERED THE DOCUMENTS NOTED IN THE PARAGRAPH [29] (ii) (b) ORDER OF THE JUNE DECISION?
11There is a difference of opinion between the Parties’ counsel concerning the meaning of the Tribunal’s Order in paragraph [29] (ii) (b) of the June Decision as reproduced above in paragraph [5].
12In the interests of clarity at this late stage in the proceedings just over one month prior to the merits hearing that will commence on October 11, 2022, the Tribunal will make the Order set out in paragraph [19] below.
13By way of brief explanation, the requirement is that, for the reasons set out in the June Decision (which shall not be restated here), Obico must produce the documents underlying its pleading in paragraph 37 of its Statement of Claim (“Paragraph 37 Pleading”) which is as follows:
- The claim for market value based on the highest and best use of the Subject Property represents a conclusion on value as determined by CBRE, an independent appraisal expert firm with supporting expert evidence supplied to CBRE from a number of other firms, including Urban Strategies, an independent planning expert.
[emphasis added]
14Obviously, at the time of the June Decision, the reports now described in the written submissions of the City’s counsel were unknown to the Tribunal (and to the City’s counsel, for that matter). It is impossible in these circumstances for the Tribunal to consider or opine on any differences between “reports” and “draft reports” that may have existed at the time of the Paragraph 37 Pleading, except to state that if final versions of reports existed on that date, then it would be unnecessary for Obico/Dream to produce any prior drafts of those final versions.
15It is also impossible to know what Obico/Dream meant by the words “supporting expert evidence supplied to CBRE” used in the Paragraph 37 Pleading. The language in that Pleading was chosen by Obico/Dream and it bears responsibility for any inherent vagueness, and must produce for inspection all documents related to such evidence that existed at the time of the Paragraph 37 Pleading, subject to the comments made in paragraph [16] below and to the Order set out in paragraph [19] below.
16For clarity, Obico/Dream is to produce full and complete versions of whatever “reports” and “supporting expert evidence” that existed at the time of making the Paragraph 37 Pleading, and that are referred to therein, not merely executive summaries thereof – including all appendices and any other items specifically listed in such reports (collectively, “Full Versions”). However, other than the Full Versions, Obico/Dream is not required to produce any documents or correspondence that are or were the subject of communications between it and its (inside and outside) lawyers - or between its (inside and outside) lawyers (on one hand) and CBRE, Urban Strategies, and/or “other firms” (on the other hand) in relation to the Paragraph 37 Pleading.
17The Tribunal disagrees that there is any requirement for Obico/Dream to produce for inspection or to answer questions on a continued examination for discovery relating to any legal opinions regarding or any communications with Obico’s inside or outside lawyers regarding “…the purchase option cited by Mr. Morassutti at page 7 of the CBRE Executive Summary…”, as described by the City’s counsel in his submissions. However, the purchase option itself, if it was in writing at the time of the Paragraph 37 Pleading, shall be produced by Obico/Dream.
ORDER
18The Tribunal Orders that:
(i) Obico Railyard Inc. and Dream Asset Management Inc. (“Obico”/“Dream”) shall produce for inspection full unredacted copies of the following written documents referred to and described in paragraph 37 of the Statement of Claim:
(a) all “reports” and “supporting expert evidence” of “CBRE”, “Urban Strategies” and “other firms” that existed at the time of the pleading in paragraph 37 of the Statement of Claim;
(b) all appendices and other items listed, cited, or otherwise referred to in the “reports” and “supporting expert evidence” described in paragraph [19] (i)(a); and
(c) the purchase option cited by Mr. Morassutti at p. 7 of the CBRE Executive Summary, as referenced in the City’s written submissions on this Motion for Directions that is the subject matter of this Decision.
(ii) The representative of Obico/Dream, Tony Medeiros shall reattend for examination for discovery to answer proper questions related to the documents to be produced under the Order made in paragraph [19] (i);
(iii) For greater certainty, the Order in paragraph [19] (i) and (ii) above shall not require Obico/Dream to produce, nor require Mr. Medeiros to answer questions regarding:
(a) any further documents, correspondence or oral communications between Obico/Dream and its inside and outside lawyers, whether created or occurring before or subsequent to the Statement of Claim;
(b) any further documents or correspondence or oral communications between Obico/Dream’s inside and outside lawyers (on one hand) and CBRE, Urban Strategies, and/or “other firms” (on the other hand) as described in paragraph 37 of the Statement of Claim, whether created or occurring before or subsequent to the Statement of Claim; or
(c) any oral or written legal opinions regarding or any communications with Obico’s inside or outside lawyers regarding “the purchase option cited by Mr. Morassutti at p. 7 of the CBRE Executive Summary” as referred to in the City’s Submissions delivered for the Motions for Directions that is the subject matter of this Decision.
19The Tribunal makes no Order regarding the Costs of this Motion.
“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.