Oakville Developments (2010) Inc. v. Metrolinx, 2023 CanLII 121529

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: December 14, 2023

CASE NO.: OLT-22-004250

PROCEEDING COMMENCED UNDER section 26(b) of the Expropriations Act, R.S.O. 1990, c. E.27.

Claimant: Oakville Developments (2010) Inc.

Respondent: Metrolinx

Subject: Expropriation / Land Compensation

Description: Determination of compensation due to underpass being built at Lakeshore West GO.

Reference Number: 08-15-22-2016 and 08-15-22-2017

Property Address: 550 Kerr Street

Municipality/UT: Oakville/Halton

OLT Case No: OLT-22-004250

OLT Lead Case No: OLT-22-004250

OLT Case Name: Oakville Developments (2010) Inc. v. Metrolinx

PROCEEDING COMMENCED UNDER section 26(b) of the Expropriations Act, R.S.O. 1990, c. E.27.

Claimant: Shoppers Realty Inc.

Respondent: Metrolinx

Subject: Expropriation / Land Compensation

Description: Determination of compensation due to underpass being built at Lakeshore West GO.

Reference Number: HR1779615

Property Address: 550 Kerr Street

Municipality/UT: Oakville/Halton

OLT Case No: OLT-22-004620

OLT Lead Case No: OLT-22-004250

OLT Case Name: Shoppers Realty Inc. v. Metrolinx

BEFORE:

W. MIDDLETON, VICE-CHAIR

Wednesday, the 13th day of December, 2023

THIS MATTER having come on for a status hearing by telephone conference call on December 8, 2023 pursuant to the Tribunal’s Decision issued April 11, 2023, which also scheduled a the first phase of an arbitration hearing under the Expropriations Act, R.S.O. 1990, c. E.27. to commence on February 12, 2024;

AND THE TRIBUNAL having been advised that the Parties have resolved certain outstanding procedural matters and have agreed to amend the draft Procedural Order which had been under discussion by the Parties;

THE TRIBUNAL THEREFORE ORDERS that the Procedural Order attached hereto as Schedule “A” shall be issued and shall govern the conduct of this proceeding including the hearing now scheduled to commence on Monday, February 12, 2024 at 10:00 AM for 13 days to proceed by video as follows:

Go To Meeting: https://global.gotomeeting.com/join/914098901

Access Code: 914-098-901

Audio-only telephone line: Toll Free 1-888-299-1889, or (647) 497-9373

Audio-only access code: 914-098-901

“Euken Lui”

EUKEN LUI

ACTING REGISTRAR

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.

SCHEDULE “A”

ISSUE DATE:

CASE NOS.: OLT-22-004250 OLT-22-004620

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

Claimants: Oakville Developments (2010) Inc. (the owner) and Shoppers Realty Inc. (a tenant)

Respondent: Metrolinx

Subject: Claim for compensation

Property Address/Description: 550 Kerr Street, Oakville

Municipality: Regional Municipality of Halton

OLT Case Nos.: OLT-22-004250 / OLT-22-004620

OLT File Nos.: OLT-22-004250 / OLT-22-004620

OLT Case Name: Oakville Developments (2010) Inc., et al. v. Metrolinx

PROCEDURAL ORDER

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 February 12, 2024 at 10:00 a.m. at:

https://global.gotomeeting.com/join/914098901

Access Code: 914-098-901

3. The first phase of the hearing (as delineated by the Issues List – Attachment 3 to this Procedural Order) is 13 days to conclude on February 29, 2024. The Tribunal will stand down on February 19, 2024 which is the Family Day. 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 procedural timetable of pre-hearing steps is set out in Attachment 2 to this Order.

6. The issues are set out in the Issues List attached as Attachment 3. 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.

7. The order of evidence shall be as set out in Attachment 4 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.

8. 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.

9. 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

10. The Claimant, Oakville Developments (2010) Inc. (“Oakville Developments”), served and filed a Notice of Arbitration and Statement of Claim on August 15, 2022.

11. The Respondent, Metrolinx, served and filed its Reply on September 6, 2022.

12. The Claimant, Shoppers Realty Inc. (“Shoppers”), served and filed a Notice of Arbitration and Statement of Claim on November 7, 2022.

13. The Respondent, Metrolinx, served and filed its Reply on March 13, 2023.

14. The Claimants and the Respondent consent to the consolidation of the two matters.

15. The parties shall exchange their respective Affidavits of Documents and Productions by May 12, 2023.

16. Examinations for Discovery of the representative of each party shall be completed on or before September 7, 2023. Further examination for discovery of Oakville Developments (2010) Inc. by Shoppers Realty Inc. for up to one half-day (or by written interrogatories) on Oakville Developments (2010) Inc.’s Supplementary Affidavit of Documents served on December 7, 2023, shall be completed on or before January 8, 2024.

17. Each party shall answer their respective undertakings arising from examinations for discovery on or before September 29, 2023.

18. Any motions arising from either documentary discovery or the Examination for Discovery and answers to undertakings, if necessary, shall be filed with the Tribunal, in writing, subject to the Tribunal’s discretion to schedule a video hearing event in relation to such motions. Responding materials shall be served 7 days later and any Reply materials shall be served 3 days later.

19. Further answers to undertakings, questions taken under advisement, and/or refusals, further examinations for discovery, and/or further productions arising from a motion are to be answered, held, and/or provided within thirty (30) days of the delivery of the decision from the discovery motion before the Tribunal, or as otherwise ordered by the Tribunal.

20. 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 Monday, December 4, 2023 and in accordance with paragraph 35 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.

21. Expert witnesses in the same field shall have a meeting on or before December 20, 2023 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 January 16, 2024.

22. 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 24 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.

23. 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 24 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 24 below.

24. On or before November 3, 2023, 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 35 below.

25. Upon review of the exchange of expert witness statements/reports the Parties shall consider and confer on mediation.

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

27. On or before Monday, February 7, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 35 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

28. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before December 15, 2023 and in accordance with paragraph 35 below.

29. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator, in both electronic and hard copy, on or before the Monday, January 29, 2024.

30. 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 or in advance of the start of the cross-examination of any witness at the hearing.

31. 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.

32. 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.

33. Any party choosing to exercise its right to serve a request to admit facts or documents pursuant to Rule 51 of the Rules of Civil Procedure incorporated by reference in Tribunal Rules 1.4 and 26.16 shall serve such request or requests on the party of parties opposite at least 30 days before the hearing date.

34. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, January 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.

35. 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.

36. 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.

TRIBUNAL REGISTRAR

ATTACHMENT 1 – PARTY LIST

Party: Oakville Developments (2010) Inc. Party Status: Claimant Counsel / Representative: Aird & Berlis LLP Brookfield Place, 181 Bay Street Suite 1800, Box 754 Toronto, ON M5J 2T9 Christopher Williams (LSO# 19748D) Tel: 416.865.7745 Email: cwilliams@airdberlis.com Ajay Gajaria (LSO# 63660C) Tel: 416.865.3065 Email: agajaria@airdberlis.com

Party: Shoppers Realty Inc. Party Status: Claimant Counsel / Representative: Weirfoulds LLP 66 Wellington Street West, Suite 4100 TD Bank Tower P.O Box 35 Toronto, Ontario, M5K 1B7 Sean Foran (LSO #31047D) Tel: 416.947.5019 Email: sforan@weirfoulds.com Abbey Sinclair (LSO #64230C) Tel: 647.715.7065 Email: asinclair@weirfoulds.com

Party: Metrolinx Party Status: Respondent Counsel / Representative: M&H LLP 61A Jarvis St., Suite 200 Toronto, ON M5C 2H2 Christel Higgs (LSO #53408T) Tel: 416.947.6701 Fax: 416.947.6703 Email: christel@mhlawyers.ca Ian Mathany (LSO #57197U) Tel: 416.947.6702 Email: ian@mhlawyers.ca

ATTACHMENT 2 – TIMETABLE

Exchange Affidavit of Documents: May 12, 2023

Examinations for Discovery: September 7, 2023

Examinations for Discovery for Oakville Developments (2010) Inc.’s Supplementary Affidavit of Documents: January 8, 2024

Undertakings to be answered: September 29, 2023

Further answers to Undertakings to be answered: Within 30 days of the decision from the discovery motion, if any

Exchange of Witness List: December 1, 2023

Expert Witness Statements / Reports / Lay Witness Statements: November 3, 2023

Mediation: October 18, 2023

Meeting(s) of Like Experts: December 20, 2023

Case Management Conference: December 8, 2023

Exchange of Expert Reply Witness Statements / Reply Reports: December 15, 2023

Agreed Statement of Facts: January 16, 2024

Preparation of Hearing Plan: January 15, 2024

Confirm whether all hearing dates still required: January 15, 2024

Arrange for Court Reporter: January 15, 2024

Joint Document Book: January 29, 2024

Visual evidence: February 7, 2024

Documents to be used in cross- examination: To be provided on or before the first day of the hearing

Hearing: February 12-29, 2024 (standing down February 19, 2024)

ATTACHMENT 3 – ISSUES LIST

Phase 1:

The determination of compensation owed to the Claimants pursuant to the Expropriations Act arising from Metrolinx’s expropriation of the Claimants’ respective property interests on account of market value and injurious affection relating to the taking and not the construction or use of the subject property for the Metrolinx project.

The damages sought by the Claimants are set out in their respective Statements of Claim and include damages sought for market value, injurious affection, interest, reasonable legal, appraisal and other fees and such further and other relief as the Tribunal deems appropriate for the issues in Phase 1 of the hearing.

Phase 2:

All other damages and entitlements of the Claimants under the Expropriations Act not addressed in Phase 1, if any, and as set out in their respective Statement of Claim. Issues related to disturbance damages, any further injurious affection, reasonable legal, appraisal and other fees and such further and other relief as the Tribunal deems appropriate.

Metrolinx reserves its rights to advance any defence including that such claims were advanced in Phase 1 and are therefore barred from further adjudication.

ATTACHMENT 4 – ORDER OF EVIDENCE

1. Oakville Developments’ evidence in-chief
2. Oakville Developments’ evidence in cross-examination
3. Shoppers’ evidence in-chief
4. Shoppers’ evidence in cross-examination
5. Respondent’s evidence in-chief
6. Respondent’s evidence in cross-examination
7. Claimants’ replies, if any.