Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: February 16, 2023
CASE NO(S).: OLT-22-004306
PROCEEDING COMMENCED UNDER section 26(1) of the.
Claimant: Viso Inc.
Respondent: Metrolinx
Subject: Determination of Compensation
Property Address: 388 Carlaw Avenue
Municipality/UT: Toronto/Toronto
OLT Case No: OLT-22-004306
OLT Case Name: Viso Inc. v. Metrolinx
Heard: January 31, 2023 by video hearing
APPEARANCES:
Parties
Counsel
Viso Inc. (“Claimant”)
Sarah Spitz
Metrolinx (“Respondent”)
Jessica Karban
MEMORANDUM OF ORAL DECISION DELIVERED BY ROBERT G. ACKERMAN ON JANUARY 31, 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, brought by the Claimant, Viso Inc., against the Respondent, Metrolinx, arising out of the partial expropriation and subsequent acquisition by the Respondent of the property municipally known as 388 Carlaw Avenue, Toronto. The Claimant was a commercial tenant at the subject property, from which it operated a decorative lighting design and manufacturing business. The expropriation and acquisition of the subject property by the Respondent was for the purposes of the Ontario Line subway project.
PROCEDURAL ORDER
2Counsel advised the Tribunal that the parties were content with the provisions of a draft Procedural Order (“PO”), Issues List and Order of the Evidence circulated by counsel for the Claimant prior to this CMC and that they would like to set a Hearing date, a date for a Pre-Hearing and Mediation Assessment and a date for an Undertakings and Refusals Motion, should such be required, all of which would finalize the draft PO.
3Following consultation respecting the Tribunal’s calendar and the availability of the parties, counsel and witnesses, a five-day Hearing on the Merits, by video conference was agreed upon, commencing on Monday, April 22, 2024 to Friday, April 26, 2024.
4The parties agreed to a Pre-hearing Conference and Mediation Assessment as provided for by paragraph 30 of the draft PO, to be conducted by Telephone Conference Call (“TCC”) on Wednesday, January 10, 2024.
5Counsel also agreed that a Motion to address issues concerning either documentary discovery, or the Examinations for Discovery, as contemplated in paragraph 14 of the draft PO, be scheduled for Tuesday, August 8, 2023. Should such a Motion not be required, counsel shall notify the Tribunal as early as reasonably possible.
6The Tribunal has subsequently received and reviewed the revised draft of the PO, Issues List and Order of Evidence. The fixed dates for the Hearing on the Merits, the Motion and the Pre-Hearing Conference and Mediation Assessment 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, which will now govern all further pre-hearing procedural requirements and the hearing of the Appeal.
HEARING – APRIL 22 TO 26, 2024
8For the five-day video hearing, commencing at 10 a.m. on Monday, April 22, 2024, and continuing to Friday, April 26, 2024, the Parties 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:
Monday, April 22, 2024 to Friday, April 26, 2024 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/765631861
Access code: 765-631-861 Audio-only telephone line: +1 (647) 497-9391 or Toll Free 1-888-455-1389 Audio-only access code: 765-631-861
9Parties, 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
10Persons 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.
11Individuals 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.
PRE-HEARING CONFERENCE AND MEDIATION ASSESSMENT
12A TCC Pre-Hearing Conference and Mediation Assessment is scheduled to address any other outstanding matters relating to the Hearing, will commence at 9 a.m. on Wednesday, January 10, 2024, with the following dial-in instructions:
13Individual(s) are directed to call (416) 416-212-8012 or Toll Free 1-866-633-0848 on the assigned date at the correct time. When prompted, enter the code 4779874# to be connected to the call. It is the responsibility of the person(s) participating in the call to ensure that they are properly connected to the call and at the correct time. Questions prior to the call may be directed to the Tribunal’s Case Coordinator having carriage of this case.
MOTION
14For the one-day Motion Hearing by video Hearing, commencing at 10 a.m. on Tuesday, August 8, 2023, the Parties 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:
Tuesday, August 8, 2023 at 10 a.m. GoTo Meeting: https://global.gotomeeting.com/join/709076365
Access code: 709-076-365 Audio-only telephone line: +1 (647) 497-9391 or Toll Free 1-888-455-1389 Audio-only access code: 709-076-365
15Parties, 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
16Persons 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.
17Individuals 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.
Other Matters
18There will be no further notice with respect to the two hearing events and the Panel Member is not seized.
19The Tribunal so Orders and provides these CMC directives for the purposes of the case management 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
ISSUE DATE: CASE NO(S).: OLT-22-004306
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended and in the matter of an Arbitration:
Applicant(s)/Appellant(s): Viso Inc.
Subject: Land Compensation
Property Address/Description: 388 Carlaw Avenue
Municipality: City of Toronto
Municipal File No.:
OLT Case No.: OLT -22-004306
OLT File No.: OLT -22-004306
OLT Case Name: Viso Inc. 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 Monday, April 22, 2024 at 10:00 a.m. at
Ontario Land Tribunal, 655 Bay Street
16th Floor Toronto, Ontario
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 identified at the case management conference are set out in Attachment 1.
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.
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 – 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 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
The Claimant served and filed a Notice of Arbitration and Statement of Claim on or about August 26, 2022.
Metrolinx served and filed a Reply on or about September 30, 2022.
The parties shall exchange their respective Affidavits of Documents and Productions by February 28, 2023.
Examinations for Discovery of the representative of each party shall be completed on or before April 28, 2023. The parties consent to conducting examinations for discovery by way of videoconference.
Each party shall answer their respective undertakings arising from examinations for discovery on or before May 31, 2023.
Any motion arising from either documentary discovery or the Examinations for Discovery and answers to undertakings, if necessary, shall be heard on August 8, 2023 at 10:00 a.m., and will be held by way of videoconference or at a mutually convenient location at the direction of the Tribunal. In the event that the parties do not require any such motion, they shall endeavour to notify the Tribunal, on consent, at least seven (7) days prior to the scheduled date for the motion, or as soon as possible thereafter.
Further answers to undertaking, 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 discovery motion before the Tribunal.
A party who intends to call witnesses, whether or 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 Wednesday, February 28, 2024 and in accordance with paragraph 32 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 November 3, 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 December 4, 2023.
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 20 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 20 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 20 below.
On or before September 29, 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 32 below.
On or before September 29, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 32 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.
Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before October 31, 2023 and in accordance with paragraph 32 below.
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.
On or before Wednesday, February 28, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Friday, April 12, 2024 the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 32 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.
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 first day 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 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.
The Tribunal will conduct a pre-hearing conference and mediation assessment on consent of the parties on January 10, 2024 with a view to scheduling mediation on a date that is mutually agreed by the parties and the Tribunal.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before seven (7) days before 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 in the course of the hearing.
All filings shall be submitted electronically and in hard copy, unless otherwise directed by the Tribunal. 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.
BEFORE:
Name of Member: Robert G. Ackerman
Date: January 31, 2023
TRIBUNAL REGISTRAR
Attachment 1
Party
Party Status
Counsel / Representative
Viso Inc.
Claimant
Rayman Harris LLP 250 The Esplanade, Suite 202 Toronto, Ontario M5A 1J2 Shane Rayman (LSO #44649V) T: 416.597.5406 shane@rbllp.com Sarah Spitz (LSO #75279G) T: 416.306.8705 sarah@rbllp.com
Metrolinx
Respondent
M&H LLP 61A Jarvis Street, Suite 200 Toronto, ON M5C 2H2 Ian Mathany (LSO #57197U) Tel: 416.947.6702 ian@mhlawyers.ca Jessica Karban (LSO #75541D) Tel: 416.947.6700 x212 jessica@mhlawyers.ca
Attachment 2
OLT File No: OLT-22-004306
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:
VISO INC.
Claimant
- and -
METROLINX
Respondent
ISSUES LIST
- The issues shall be those as set out in the pleadings delivered by the Parties.
Attachment 3
OLT File No: OLT-22-004306
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:
VISO INC.
Claimant
- and -
METROLINX
Respondent
ORDER OF EVIDENCE
Viso Inc.
Metrolinx
Viso Inc., in Reply