Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: October 24, 2023
CASE NO(S).: OLT-23-000466
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27.
Claimant: The Corporation of the City of Mississauga Respondent: Metrolinx Subject: Land Compensation Description: Expropriation of permanent easement for the purpose of the Eglinton Crosstown West Extension Project Reference Number: Expropriation Plan AT5941521 Property Address: Part Lots 16 17, Concession 4 Road Allowance on Concession 3 4, Northeast of Renforth Drive Matheson Boulevard E Municipality: Mississauga OLT Case No: OLT-23-000466 OLT Case Name: Mississauga v. Metrolinx
Heard: September 29, 2023 by video hearing
APPEARANCES:
| Parties | Counsel/Representative |
|---|---|
| The Corporation of the City of Mississauga (“Claimant”) | Shane Rayman |
| Metrolinx (“Respondent”) | Aisling Flarity |
MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON SEPTEMBER 29, 2023 AND ORDER OF THE TRIBUNAL
INTRODUCTION
1This Hearing event is the first Case Management Conference (“CMC”) conducted in this Claim for compensation under the Expropriations Act (“the Act”). The claim is brought by The Corporation of the City of Mississauga ("Claimant”) against the Respondent, Metrolinx, and arises out of the Expropriation of a sub-surface permanent easement beneath lands owned by the Claimant which are improved by Matheson Boulevard in the vicinity of its intersection with Eglinton Avenue West. The expropriation was for purposes associated with the Eglinton Crosstown West Extension Project.
PROCEDURAL ORDER
2Counsel for the Claimant advised the Tribunal that, prior to the CMC, he had circulated a draft Procedural Order (“PO”) to Counsel for the Respondent seeking to establish the terms of the PO on consent, which would include a Hearing date and timeline for the completion of all pre-Hearing matters. When a consent was not forthcoming, Counsel for the Claimant communicated with the Tribunal and this CMC was scheduled. Counsel for the Respondent advised the Tribunal that she did not yet have instructions concerning the proposed PO, but was prepared to set a Hearing date. Both Counsel concurred that a five-day Hearing would be required.
3With respect to Mediation and the prospects of settlement, the Tribunal was advised that Counsel intended to cooperate to reduce the length of the Hearing by eliminating redundant evidence and would be attempting to reach settlements on issues where possible.
4Following consultation respecting the Tribunal’s calendar and the availability of the Parties, Counsel and witnesses, a five-day Hearing on the Merits, by Video Hearing (“VH”), was agreed upon, commencing on Monday, May 27, 2024, at 10 a.m. and concluding on Friday, May 31, 2024.
5The Tribunal directed that the parties are to attend a second CMC for purposes of establishing the terms of a PO, and Counsel agreed to October 4, 2023, at 10 a.m. for the second CMC. The Tribunal directed that the second CMC could be cancelled without the necessity of attendance if the Tribunal receives a consent PO prior to October 4, 2023.
6The Tribunal has subsequently received a consent PO, Issues List and Order of Evidence, which it has reviewed and finds acceptable. The fixed dates for the Hearing on the Merits and for the pre-Hearing timeline, are now provided in the PO, appended to this Decision, and the coordinates for the Hearings are set out below in this Decision.
7Appended to this Decision as Attachment 1 is the PO, Issues List and Order of Evidence, which will now govern all further pre-Hearing procedural requirements and the Hearing of the Arbitration.
8For the five-day VH, commencing at 10 a.m. on Monday, May 27, 2024, and concluding on Friday, May 31, 2024.
9Parties 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:
GoTo Meeting: https://global.gotomeeting.com/join/656004293
Access code: 656-004-293
10Parties, witnesses and observers 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
11Persons 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) 1-888-299-1889. The access code is 656-004-293.
12Individuals 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 VH 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.
ORDER
13THE TRIBUNAL ORDERS THAT this Arbitration be scheduled for a five-day Hearing on the Merits, by Video Hearing commencing on Monday, May 27, 2024, at 10 a.m.
14AND THE TRIBUNAL ORDERS THAT the Procedural Order appended as Attachment 1 to this Decision shall govern the conduct of this proceeding.
“Robert G. Ackerman”
ROBERT G. ACKERMAN
MEMBER
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.
ATTACHMENT 1
CASE NO(S).: OLT-23-000466
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27 .
Claimant: The Corporation of the City of Mississauga Respondent: Metrolinx Subject: Land Compensation Description: Expropriation of permanent easement for the purpose of the Eglinton Crosstown West Extension Project Reference Number: Expropriation Plan AT5941521 Property Address: Part Lots 16 17, Concession 4 Road Allowance on Concession 3 4, Northeast of Renforth Drive Matheson Boulevard E Municipality: Mississauga OLT Case No: OLT-23-000466 OLT Case Name: Mississauga v. Metrolinx
PROCEDURAL ORDER
- 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 will begin on May 27-31, 2024 at 10:00 a.m. by videoconference.
GoTo Meeting: https://global.gotomeeting.com/join/656004293
Access code: 656-004-293
The parties’ initial estimation for the length of the hearing is five (5) 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 are set out in Attachment 1.
The issues are set out in the Issues List attached as Attachment 2
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. 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
Affidavits of Documents (together with production briefs of the documents) shall be exchanged on or before Friday, November 10, 2023.
Discoveries shall be completed on or before Thursday December 14, 2023. The parties agree to complete Examinations for Discovery virtually by way of videoconference.
All undertakings provided at the Examination for Discovery of the parties shall be answered on or before Wednesday February 14, 2024.
Any motion(s) arising out of the Examinations for Discovery shall be filed, in writing, on or before Thursday, February 29, 2024. The Tribunal’s Rules of Practice and Procedure apply in relation to any Motion(s) arising out of the discovery process. Should the parties agree that the motion date is not required, the parties agree to advise the Tribunal as soon as possible. Any productions ordered by the Tribunal at this Motion shall be produced within thirty (30) days of the decision by the Tribunal.
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 Wednesday, February 14, 2024, and in accordance with paragraph 26 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 seven days after the delivery of expert reports as set out in paragraph 17 below, 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 fifteen days prior to the commencement of the Hearing.
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 16 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.
Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 16 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 16 below.
On or before Tuesday, March 19, 2024 the parties shall provide copies of their witness statements and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 26 below.
The parties shall provide copies of their visual evidence to all the other parties at least seven (7) days prior to the start of the hearing and in accordance with paragraph 26 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence, including reply reports, by Friday, April 19, 2024, the evidence is received and in accordance with paragraph 26 below.
The parties agree to attend a pre-hearing conference before the Tribunal on Friday, April 26, 2024 and use best efforts to try to resolve or reduce the issues for the hearing.
On or before Wednesday, April 10, 2024, the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator at least ten (10) days prior to the start of the hearing.
Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before the first day of 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 at least seven (7) days prior to the start of the hearing 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 during 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.
Attachment 1
| Party | Party Status | Counsel / Representative |
|---|---|---|
| The Corporation of the City of Mississauga | Claimant | RAYMAN HARRIS LLP 250 The Esplanade, Suite 202 Toronto, Ontario M5B 1J2 Shane Rayman (LSO #44649V) T: 416.597.5406 F: 437.222.9001 shane@rbllp.com Brynn Leger (LSO #77713P) T: 437.222.9003 brynn@rbllp.com |
| Metrolinx | Respondent | M&H LLP 61A Jarvis St., Suite 200 Toronto, ON M5C 2H2 Christel Higgs (LSO #53408T) Tel: 416.947.6701 Fax: 416.947.6703 christel@mhlawyers.ca Aisling Flarity (LSO#65500B) Tel: 416-947-6700 ext. 204 Fax: 416.947.6703 aisling@mhlawyers.ca |
Attachment 2
OLT File No. OLT-23-000466
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:
THE CORPORATION OF THE CITY OF MISSISSAUGA
Claimant
- and -
METROLINX
Respondent
ISSUES LIST
- The issues are defined by the pleadings of the parties which will be filed with the Tribunal.
ATTACHMENT 3 – ORDER OF EVIDENCE
- Claimants’ evidence in-chief
- Claimants’ evidence in cross-examination
- Respondent’s evidence in-chief
- Respondent’s evidence in cross-examination
- Claimants’ reply evidence, if any