Ontario Land Tribunal

Tribunal ontarien de l’aménagement

du territoire

ISSUE DATE:

October 23, 2023

CASE NO(S).:

OLT-23-000343

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriation Act, R.S.O. 1990, c. E.26, as amended

Claimant:

Osmington (Union Station) Inc.

Respondent:

Metrolinx

Subject:

Land Compensation

Property Address:

65 Front Street

Municipality:

City of Toronto

OLT Case No.:

OLT-23-000158

OLT Lead Case No.:

OLT-23-000158

OLT Case Name:

Osmington (Union Station) Inc. v. Metrolinx

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriation Act, R.S.O. 1990, c. E.26, as amended

Claimant:

City of Toronto

Respondent:

Metrolinx

Subject:

Land Compensation

Property Address:

65 Front Street

Municipality:

City of Toronto

OLT Case No.:

OLT-23-000343

OLT Lead Case No.:

OLT-23-000343

OLT Case Name:

City of Toronto v. Metrolinx

Heard:

October 3, 2023 by Video Hearing (“VH”)

APPEARANCES:

Parties

Counsel

City of Toronto (“City”)

C. Barnett/ D. Williams

Osmington (Union Station) Inc. (“Osmington”)

I. Andres

Metrolinx

C. Williams/ T. Hill/ A. Skinner

MEMORANDUM OF ORAL DECISION DELIVERED BY BLAIR S. TAYLOR AND ROBERT G. ACKERMAN ON OCTOBER 3, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1It is trite to say that these claims for compensation arise from a series of complex expropriations of certain lands (including air rights) at Union Station in Toronto.

2The Tribunal held its second Case Management Conference (“CMC”) to receive an update on the status of certain matters including Tribunal-led mediation, a draft Procedural Order (“PO”), and a Common Visual Evidence Book.

DECISION

3For the reasons set out below, the Tribunal declined to set a hearing date, but set a further CMC for Thursday, November 23, 2023 commencing at 10 am by VH.

TRIBUNAL-LED MEDIATION

4The Tribunal was advised that the parties had participated in a mediation assessment session in September 2023 and that a further session was anticipated later this month.

5While all the parties are in principle committed to mediation, counsel advised that one threshold issue was whether mediation ought to proceed pre discoveries or post discoveries. At present, that threshold matter has not been resolved.

DRAFT PROCEDURAL ORDER

6While the Tribunal had directed in its decision issued August 1, 2023, that a draft PO should be provided to the Case Coordinator by September 26, 2023, there was no agreement among the parties. A draft PO (Exhibit 2) was received from Osmington and the City, and during the CMC (being the day after the new Truth and Reconciliation Day holiday) a black lined version from Metrolinx was received by the Case Coordinator.

7Exhibit 2 contemplated a five week hearing and requested a hearing date of April 1, 2025 with counsel for the City and Osmington indicating that they would each be calling three witnesses. As Exhibit 2 contained no Issues List, Osmington and City submitted that their pleadings constituted their issues.

8Metrolinx disagreed and argued that due to the potential overlap between the claims by City and Osmington that there should be an Issues List.

9Counsel for Metrolinx also told the Tribunal that they would be calling six expert witnesses and one lay witness and that a six week hearing would be more appropriate. Further counsel for Metrolinx submitted that if the parties were committed to mediation the timing contained in Exhibit 2 should be amended to allow for the mediation process to occur before discoveries.

COMMON VISUAL EVIDENCE BOOK

10The Tribunal had suggested at the first CMC on July 7, 2023 (and the parties seemed agreeable) to the preparation of a Common Visual Evidence Book in light of the complexity of the expropriations (which included air rights).

11Counsel advised that they had met about the Common Visual Evidence Book. They all spoke to the complexity of same in attempting to illustrate three dimensional matters on a two dimensional plan. Notwithstanding that complexity, good progress had been made, and that Metrolinx had produced a draft (45 pages), and the parties were “close” to agreement on the Common Visual Evidence Book.

12In response to the Tribunal’s inquiry as to whether the parties had reached agreement on the lands expropriated and their areas, counsel for the City advised that his client continued to examine the legal descriptions found in Metrolinx’s Reply (Exhibit 1), as it was a complex matter.

COMMENTARY

13The fact that the parties, as of yet, have not been able to come to agreement on the lands expropriated and their areas, and to be able to arrive at a Common Visual Evidence Book, leads the Tribunal to conclude that it would be premature at this time to set a firm hearing date.

14Rather the Tribunal prefers to set a further CMC to enable the parties to (hopefully) come to agreement on the very basic matter of which lands were expropriated and what their respective areas are, and to be able to distill that into a Common Visual Evidence Book for use at either a mediation session or a merit hearing.

THIRD CMC

15Accordingly the Tribunal will set a third CMC for Thursday, November 23, 2023 commencing at 10 a.m. by VH.

16Parties and participants 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:

https://global.gotomeeting.com/join/692665589

Access Code: 692-665-589

17Parties and participants 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.

18Persons 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: Toll-Free 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated above.

19Individuals 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 CMC 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.

CMC AGENDA

20For the third CMC the Tribunal anticipates receiving status updates from the parties concerning:

a. Mediation;

b. Whether agreement has been reached on the lands and areas expropriated;

c. If the Common Visual Evidence Book has been prepared; and

d. A revised draft PO.

21With regard to the PO, the Tribunal notes the following from paragraph 18 (c) in its decision from the second CMC that issued on August 1, 2023:

18 For the second CMC on October 3, 2023, the Tribunal will expect the agenda to include addressing the following: …

c) A draft Procedural Order that sets out inter alia the discovery process and timing; how the two claims might be heard together; an Issues List; the anticipated length of the hearing; and includes a date for the filing of a draft mandatory Hearing Plan to be filed with the Tribunal…” (emphasis added)

ORDER

22Accordingly the Tribunal directs that the parties shall file with the Case Coordinator a revised draft Pl O on or before Monday, November 20, 2023, which shall contain the following inter alia:

a. Provision for a six week hearing;

b. An Issues List;

c. That the production of a Witness List shall include the areas of expertise for each expert, and for any lay witness, that lay witness’ area of involvement in the matter;

d. That the update to a draft hearing plan shall be provided to the Case Coordinator at least 45 days in advance of the hearing date; and

e. Hard copy materials will be supplied to the Tribunal.

23There will be no further notice of the third C M C.

24We are not seized.

25Scheduling permitting, we may be available for case management purposes.

26This is the Order of the Tribunal.

BLAIR S. TAYLOR

BLAIR S. TAYLOR

VICE CHAIR

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.