Atelier Kids Inc. v. City of Toronto & TTC, 2023 CanLII 115097

Ontario Land Tribunal / Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: November 27, 2023

CASE NO(S).: OLT-23-000085

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

Claimant: Atelier Kids Inc.

Respondents: City of Toronto & TTC

Description: Determination of compensation

Property Address: 21 Quebec Avenue

Municipality: City of Toronto

OLT Case No.: OLT-23-000085

OLT Case Name: Atelier Kids Inc. vs. City of Toronto & The Toronto Transit Commission

Heard: October 23, 2023 by Video Hearing ("VH")

APPEARANCES:

Parties

Atelier Kids Inc. ("Claimant")

Counsel

Michael Krygier-Baum Barry B. Papazian

Parties

City of Toronto and the Toronto Transit Commission ("Respondents")

Counsel

Michael Maloney Nathan Muscat

MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON OCTOBER 23, 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 claim is brought by the Claimant against the Respondent and arises out of the acquisition of an easement over and upon a portion of the property municipally known as 21 Quebec Avenue, ("the Subject Property") and the subsequent construction of improvements to the High Park Subway Station. The Claimant was a commercial tenant at the Subject Property where it operated a children’s daycare facility and claims damages for injurious affection and other relief.

PROCEDURAL ORDER

2Counsel for both Parties advised that they were seeking to schedule a seven (7)-day Hearing on the Merits. Counsel agreed to cooperate in the preparation and submission of a draft Procedural Order ("PO") following the CMC. Following consultation, respecting the Tribunal’s calendar, and the availability of the Parties and Counsel, a seven (7)-day Hearing on the Merits, by VH was agreed upon, commencing on Monday, October 21, 2024, and concluding on Tuesday, October 29, 2024.

3Both Counsel advised that their clients would like to participate in a Tribunal-led Mediation of the claim after the exchange of Affidavit of Documents and prior to Examinations for Discovery, and undertook to contact the Tribunal’s Mediation Coordinator at that time.

4The Tribunal has subsequently received and reviewed the draft of the PO, Issues List ("IL") and Order of Evidence. 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. Counsel are directed to have regard for the provision inserted into the PO by the Tribunal respecting compliance with Rule 26.21 of the Ontario Land Tribunal Rules of Practice and Procedure.

5Appended 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.

6Appended to this Decision as Attachment 2 and Attachment 3, are the IL and Order of the Evidence, which shall govern the conduct of the Hearing on the Merits.

HEARING – October 21 – October 29, 2024

7For the seven (7)-day VH, commencing on Monday, October 21, 2024, at 10 a.m. and continuing to Tuesday, October 29, 2024, 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:

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

Access Code: 692-665-589

Audio-only Telephone Line: +1 (647) 497-9373 or (Toll-Free) 1-888-299-1889

Audio-only Access Code: 692-665-589

8Parties 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

9Persons 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 provided above.

10Individuals 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

11THE 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-23-000085

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

Claimant: Atelier Kids Inc.

Respondent: City of Toronto & TTC

Description: Determination of compensation

Property Address: 21 Quebec Avenue

Municipality: City of Toronto

OLT Case No.: OLT-23-000085

OLT Case Name: Atelier Kids Inc. vs. City of Toronto & TTC

1. 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

2. The video hearing will begin on Monday, October 21, 2024, at 10 a.m. by Video Hearing

3. The parties’ initial estimation for the length of the hearing is seven (7) 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.

4. The parties identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. 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.

6. 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.

7. 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 – ideally before the case management conference. 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.

8. All parties, counsel and witnesses, are expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

Discovery

9. In accordance with Rule 26.21, appraisal reports to be relied upon by either party shall be served at least 15 days prior to examinations for discovery, unless the Tribunal orders otherwise. The Parties shall agree on the terms of a Discovery Plan by November 15, 2023. Subject to the terms of the Discovery Plan to be agreed upon by the Parties. The discovery process shall be completed as follows:

a. Affidavits of Documents: The parties shall exchange Affidavits of Documents and productions on or before January 1, 2024.

b. Oral Discovery: The first round of oral discoveries shall be completed on or before April 30, 2023. The parties shall deliver their respective answers to undertakings arising from the first round of oral discoveries on or before April 15, 2024.

c. Motions: The parties shall serve and file their motions respecting undertakings, if necessary, on or before May 15, 2024, with the motions being heard on or before July 15, 2024.

Expert Witnesses

10. 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 July 15, 2024 and in accordance with paragraph 22 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.

11. Expert witnesses in the same field shall have a meeting on or before August 1, 2024 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 August 15, 2024.

12. 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 14 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.

13. 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 14 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 13 below.

14. On or before August 1, 2024, the parties shall provide copies of their witness and expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 22 below.

15. 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.

Other matters for the hearing

16. On or before August 15, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

17. On or before August 24, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 22 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

18. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence within ten (10) days after the evidence is received and in accordance with paragraph 22 below.

19. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before October 14, 2024.

20. 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.

21. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before August 15, 2024, 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.

22. 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.

23. 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

LIST OF PARTIES

Claimant:

Atelier Kids Inc.

PAPAZIAN HEISEY MYERS Barristers & Solicitors 121 King Street West, Suite 510, P.O. Box 105 Toronto, Ontario M5H 3T9 Fax: 416-601-1818

Barry B. Papazian (LSO#12546A) Tel: 416-601-2700 Email: papazian@phmlaw.com

Michael Krygier-Baum (LSO# 64108V) Tel: 416-601-2708 Email: krygier-baum@phmlaw.com

Lawyers for the Claimant

Respondent:

CITY OF TORONTO 26th Floor, Metro Hall 55 John Street Toronto, ON M5V 3C6

Michael Mahoney Tel: (416) 392-4846 Email: Michael.Mahoney@toronto.ca LSO #: 70968G

ATTACHMENT 2

ISSUES LIST

1. The determination of compensation owed to the Claimant pursuant to the Expropriations Act.
2. The damages sought by the Claimant are set out in the Statement of Claim and include damages sought for injurious affection.

ATTACHMENT 3

ORDER OF EVIDENCE

1. Claimant’s evidence;
2. Expropriation authority’s evidence;
3. Claimant’s reply.

Attachment to Sample Procedural Order

Meaning of terms used in the Procedural Order:

A party is an individual or corporation permitted by the Tribunal to participate fully in the hearing by receiving copies of written evidence, presenting witnesses, cross-examining the witnesses of the other parties, and making submissions on all of the evidence. An unincorporated group cannot be a party and it must appoint one person to speak for it, and that person must accept the other responsibilities of a party as set out in the Order. Parties do not have to be represented by a lawyer and may have an agent speak for them. The agent must have written authorisation from the party.

NOTE that a person who wishes to become a party before or at the hearing, and who did not request this at the case management conference (CMC), must ask the Tribunal to permit this.

Written evidence includes all written material, reports, studies, documents, letters and witness statements which a party intends to present as evidence at the hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.

Visual evidence includes photographs, maps, videos, models, and overlays which a party intends to present as evidence at the hearing.

A witness statement is a short written outline of the person’s background, experience and interest in the matter; a list of the issues which he or she will discuss ; and a list of reports or materials that the witness will rely on at the hearing.

An expert witness statement should include his or her (1) name and address, (2) qualifications, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons supporting their opinions and conclusions and (5) a list of reports or materials that the witness will rely on at the hearing. An expert witness statement must be accompanied by an acknowledgement of expert’s duty.

Additional Information

A summons may compel the appearance of a person before the Tribunal who has not agreed to appear as a witness. A party must ask a Tribunal Member or the senior staff of the Tribunal to issue a summons through a request. (See Rule 13 on the summons procedure.) The request should indicate how the witness’ evidence is relevant to the hearing. If the Tribunal is not satisfied from the information provided in the request that the evidence is relevant, necessary or admissible, the party requesting the summons may provide a further request with more detail or bring a motion in accordance with the Rules.

The order of examination of witnesses is usually direct examination, cross-examination and re-examination in the following way:

• direct examination by the party presenting the witness;
• direct examination by any party of similar interest, in the manner determined by the Tribunal;
• cross-examination by parties of opposite interest;
• re-examination by the party presenting the witness; or
• another order of examination mutually agreed among the parties or directed by the Tribunal.