Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 08, 2023
CASE NO(S).: OLT-22-002704 (Formerly LC200043)
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27
Claimant: Aerus Electrolux et al.
Respondent: The Corporation of the City of London
Subject: Determination of compensation
Description: Land Compensation
Property Address: 71 Wharncliffe Road South
Municipality/UT: London/Middlesex
OLT Case No.: OLT-22-002704
Legacy Case No.: LC200043
OLT Lead Case No.: OLT-22-002704
Legacy Lead Case No.: LC200043
OLT Case Name: Aerus Electrolux et al v. London (City)
Heard: October 12, 2023, by Video Hearing
APPEARANCES:
Parties
Counsel
1595617 Ontario Inc.
Ondrej Sabo
o/a Aerus Electrolux
Stephen Dean Babbar and
Wendy Patricia Babbar
(“Claimants”)
City of London
Tara Pollitt
(“Respondent”)
Christine McCreary
MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON OCTOBER 12, 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”), and has been scheduled in response to the granting of the Parties’ requested adjournment of the Hearing on the Merits, which had been scheduled for three days beginning on November 6, 2023. As a Procedural Order (“PO”) has never been issued for this Arbitration, a Hearing Plan and Witness List have also not been filed. Counsel were directed by the Tribunal to be prepared to set a new Hearing date at this CMC, and to file Witness Lists and proposed a Hearing Plan prior to this CMC. Counsel for the Respondent did so. Counsel for the Claimants did not.
2In answer to the Tribunal’s inquiries, Counsel advised that they each intended to call two witnesses at the Hearing, a lay witness and an appraiser, and confirmed that they were prepared to set a new Hearing date. Following consultation respecting the Tribunal’s calendar and the availability of the Parties, Counsel and witnesses, a three-day Hearing on the Merits, by Video Hearing (“VH”) was agreed upon, commencing on Wednesday, December 13, 2023, and concluding on Friday, December 15, 2023.
3Both Counsel were directed to agree upon and file a fully completed Hearing Plan, as well Witness Lists, hard and electronic copies of the Appraisal Reports, Authorities Briefs and Opening Statements, if any.
4Appended to this Decision as Attachment 1 is the PO, which will now govern all further pre-hearing procedural requirements and the hearing of the Arbitration.
5For the three-day VH, commencing at 10 a.m. on Wednesday, December 13, 2023, and continuing to Friday, December 15, 2023, the Parties are asked to log into the VH at least 15 minutes before the start of the event to test their video and audio connections:
https://global.gotomeeting.com/join/442599157
Access code: 442-599-157
6Parties, 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
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) 497-9391 or (Toll Free) 1-888-455-1389. The access code is the same as the access code noted above.
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.
ORDER
9THE 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: 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-22-002704 (Formerly LC200043)
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27
Claimant: Aerus Electrolux et al.
Respondent: The Corporation of the City of London
Subject: Determination of compensation
Description: Land Compensation
Property Address: 71 Wharncliffe Road South
Municipality/UT: London/Middlesex
OLT Case No.: OLT-22-002704
Legacy Case No.: LC200043
OLT Lead Case No.: OLT-22-002704
Legacy Lead Case No.: LC200043
OLT Case Name: Aerus Electrolux et al v. London (City)
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 Wednesday, December 13, 2023
The parties’ initial estimation for the length of the hearing is three (3) days. Notwithstanding the initial estimation for the length of the hearing 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. In the event the parties agree that scheduled hearing days may be released from the Tribunal’s calendar they are to advise the Tribunal immediately
The issues are as set out in the pleadings. 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 provided on Wednesday, November 29, 2023. 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 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
Affidavit of Documents (together with production briefs of the documents) have been exchanged.
Discoveries have been completed on or before.
Undertaking answers have been provided.
Parties 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, November 29, 2023.
An expert witness shall prepare an expert report/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 13 below. 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 17 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 17 below.
On or before Wednesday, November 29, 2023, the parties shall provide hard and soft copies of their expert witness reports and non-expert/lay witness statements to the other parties and to the OLT case coordinator and in accordance with paragraph 25 below.
On or before Wednesday, November 29, 2023, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 25 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 coordinator a written reply to any written evidence on or before Wednesday, November 29, 2023 after the evidence is received and in accordance with paragraph 25 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Wednesday, November 29, 2023.
Any documents which may be used by a party in cross examination of an opposing party’s witness shall 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 Wednesday, November 29, 2023 or in advance of the start of the cross-examination of any witness at 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 Wednesday, November 29, 2023, 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.
The parties are to update or confirm the hearing plan Wednesday, November 29, 2023.
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.