Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
December 21, 2023
CASE NO(S).:
OLT-23-000845
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended.
Claimant:
1355798 Ontario Inc.
Respondent:
Metrolinx
Description:
Determination of Compensation
Property Address
451 Queen Street West
Municipality:
City of Toronto
OLT Case No.:
OLT-23-000845
OLT Lead Case No.:
OLT-23-000845
OLT Case Name:
1355798 Ontario Inc. v. Metrolinx
Heard:
December 8, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Metrolinx
Alyssa Granato Christel Higgs (in absentia) Ian Mathany (in absentia)
1355798 Ontario Inc.
Jeffrey Goldstein
MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE ON DECEMBER 8, 2023 AND ORDER OF THE TRIBUNAL
1This was the first Case Management Conference (“CMC”) before the Tribunal with respect to a Notice of Arbitration filed by Metrolinx (“Metrolinx”) asking that the Tribunal determine the compensation to which 1355798 Ontario Inc. (“Claimant”) is entitled with respect to the lands known municipally as 451 Queen Street West in Toronto (“Subject Property”). The Claimant claims compensation arising out of the Expropriation of the Subject Property by Metrolinx, for the purposes of the Ontario Line, pursuant to Plan of Expropriation No. AT6058078, which was registered on April 27, 2022.
2On July 25, 2022, pursuant to s. 25 of the Expropriations Act, R.S.O. 1990, c. E.26, as amended (“Act”), Metrolinx served a formal offer of compensation on the Claimant, along with other registered owners, in the amount of $2,900,000. The Claimant accepted and Metrolinx paid the amount of $2,900,000 to the Claimant pursuant to s. 25(1)(b) of the Act. Such payment was made without prejudice to the Parties’ rights pursuant to the Act, including the rights of the Claimant to claim compensation from Metrolinx in excess of the compensation paid by Metrolinx. The Claimant claims entitlement to additional compensation, including mortgage payment, capital gain tax, property taxes, costs, and interest. Metrolinx disagrees and has filed a Notice of Arbitration with the Tribunal to seek assistance in determining the amount of compensation, if any, owing to the Claimant.
3The Parties filed a Procedural Order (“PO”) on consent prior to the CMC, which was reviewed by the Tribunal and ratified at the CMC. The Parties were directed to provide the final version of the PO, containing updated dates, to the Tribunal and have now done so. It is attached to this Decision and will guide these proceedings.
4The Parties expressed an interest in engaging in discussions in pursuit of a settlement. The Parties indicated that Tribunal-assisted mediation would be helpful, and they wished to engage in same. The Tribunal directed that the Parties reach out to the Tribunal’s Case Coordinator in writing in pursuit of those services. Moreover, the Tribunal directed that, if the Parties should reach a settlement with respect to some or all of the issues prior to the Hearing, they advise the Tribunal in writing at their earliest convenience.
HEARING DATE
5With respect to the Hearing date, the Parties advised that, based on the issues in dispute, a five (5) day Hearing would be required. Moreover, based on the timeline of what remained to be done, a Hearing timeline of about one year from now would be appropriate. As such, a Video Hearing has now been scheduled for five (5) days, commencing at 10 a.m. on Monday, December 9, 2024, continuing to Friday, December 13, 2024.
6On the applicable dates, the Parties are to use the following coordinates:
GoTo Meeting: https://global.gotomeeting.com/join/709076365
Access Code: 709-076-365
7Parties 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.
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: Toll-Free: 1-888-299-1889 or +1 (647) 497-9373. The Access Code is as indicated 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 as follows:
a. The Procedural Order, attached as Schedule A, will govern these proceedings.
b. The Hearing in this matter will commence on Monday, December 9, 2024, at 10 a.m., by Video Hearing and five (5) days have been set aside.
12The Member is not seized but may be contacted through the Case Coordinator should procedural issues arise.
“Bita M. Rajaee”
BITA M. RAJAEE
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.
SCHEDULE A
CASE NO(S).: OLT-23-000845
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended.
Claimant:
1355798 Ontario Inc.
Respondent:
Metrolinx
Description:
Determination of Compensation
Property Address
451 Queen Street West
Municipality:
City of Toronto
OLT Case No.:
OLT-23-000845
OLT Lead Case No.:
OLT-23-000845
OLT Case Name:
1355798 Ontario 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 December 9, 2024, at 10 a.m. at
https://global.gotomeeting.com/join/709076365
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
Metrolinx served and filed a Notice of Arbitration on August 30, 2023.
The Claimant served and filed a Notice of Arbitration and Statement of Claim on or about September 19, 2023.
Metrolinx served and filed a Reply on October 11, 2023.
The parties may make a request for consideration of mediation facilitated by the Tribunal through the Tribunal’s Case Coordinator for this process.
The parties shall exchange their respective Affidavit of Documents and Productions by April 3, 2024.
Examination for Discovery of the representative of each party shall be completed on or before May 17, 2024. 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 July 5, 2024.
Any motions arising from either documentary discovery or the Examinations for Discovery and answers to undertakings, if necessary, shall be filed with the Tribunal in writing on or before July 31, 2024. In the event that the parties do not require any such motion, they shall endeavour to notify the Tribunal, on consent, as soon as possible.
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 Order of the Tribunal.
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 Tuesday, October 15, 2024 and in accordance with paragraph 31 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 Friday, October 25, 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 Monday, November 18, 2024.
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 21 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 22 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 31 below.
On or before Thursday, October 10, 2024, the parties shall provide copies of their witness statement and expert witness statements or expert reports to the other parties and to the OLT case co-ordinator and in accordance with paragraph 31 below.
On or before Thursday, October 17, 2024 the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.
On or before Wednesday, November 27, 2024, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 31 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 co-ordinator a written response to any written evidence on or before Monday, November 11, 2024 and in accordance with paragraph 31 below.
The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before Friday, November 29, 2024.
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 seven (7) days before the hearing that the written evidence is not part of their record.
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.
The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before Monday, November 25, 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.
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.
Attachment 1
Party
Party Status
Counsel / Representative
1355798 ONTARIO INC.
Claimant
GOLDSTEIN LAW FIRM 306 Manning Ave Toronto, ON M6J 2K9 Jeff Goldstein (LSO# 67763B) Tel: 647.838.6740 Fax:416.352.1252 Email: jeff@goldsteinlawyers.ca
Metrolinx
Respondent
M&H LLP 61A Jarvis Street, Suite 200 Toronto, ON M5C 2H2 Ian Mathany (LSO #57197U) T: 416.947.6702 F: 416.947.6703 ian@mhlawyers.ca
Alyssa Granato (LSO# 79483C) T: 416.947.6700 ext. 214 F: 416.947.6703 alyssa@mhlawyers.ca
Attachment 2
OLT File No: OLT-23-000845
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:
1355798 ONTARIO INC.
Claimant
- and -
METROLINX
Respondent
ISSUES LIST
- The issues shall be those as set out in the pleadings delivered by the Parties.
a. Notice of Arbitration, dated August 30, 2023.
b. Statement of Claim filed by the Claimant.
c. Reply filed by the Respondent, dated October 11, 2023.
Attachment 3
OLT File No: OLT-23-000845
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:
1355798 ONTARIO INC.
Claimant
- and -
METROLINX
Respondent
ORDER OF EVIDENCE
Claimant evidence in-chief
Claimant evidence in cross-examination
Metrolinx evidence in-chief
Metrolinx evidence in cross-examination
Claimant evidence in Reply, if necessary