Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 15, 2023

CASE NO(S).: OLT-22-003167 (Formerly LC190023)

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

Claimant: 12908 Highway 7 Inc.

Respondent: Minister of Transportation

Subject: Land Compensation

Property Address/Description: Part of Lot 27, Concession 7

Municipality: Town of Halton Hills

OLT Case No.: OLT-22-003167

Legacy Case No.: LC190023

OLT Lead Case No.: OLT-22-003167

Legacy Lead Case No.: LC190023

OLT Case Name: 12908 Highway 7 Inc. v. His Majesty the King (“HMK”) in right of the Province of Ontario (Minister of Transportation)

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, S.O. 2021, c. 4, Sched. 6

Motion by: 12908 Highway 7 Inc.

Purpose of Motion: Request for Determination / Directions

Subject: Land Compensation

Municipality: Town of Halton Hills

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, S.O. 2021, c. 4, Sched. 6

Motion by: Minister of Transportation

Purpose of Motion: Request for Determination / Directions

Subject: Land Compensation

Municipality: Town of Halton Hills

PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, S.O. 2021, c. 4, Sched. 6

Motion by: 12908 Highway 7 Inc.

Purpose of Motion: Request for Determination / Directions

Subject: Land Compensation

Municipality: Town of Halton Hills

Heard: February 22, 2023 by Video Hearing

APPEARANCES:

Parties

12908 Highway 7 Inc.

His Majesty the King in Right of the Province of Ontario, as represented by the Ministry of Transportation

Counsel

Sarah Spitz Conner Harris

Eunice Machado Brandon Fragomeni

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE AND C. HARDY ON FEBRUARY 22, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This matter concerns a claim for compensation brought pursuant to s. 6 and s. 14 of the Public Transportation and Highway Improvement Act, and s. 1 and s. 21 of the Expropriations Act. It was brought by Pedro Nochez and Anna Maria Nochez, the owners of 12908 Highway 7 Inc. company (“Claimant”), in the Town of Halton Hills (“Town”), against His Majesty the King (“HMK”) in Right of the Province of Ontario as represented by the Ministry of Transportation (“Respondent”) with respect to the removal of one of two access points on the property known municipally as 12908 Highway 7, in the Town (“Subject Property”).

2A five-day Hearing of this Arbitration was scheduled to begin on December 5, 2022 (“Original Hearing Date”). On November 30, 2022, the Original Hearing Date was adjourned on consent and with leave of the Tribunal. The Hearing has now been scheduled to begin on March 27, 2023, and five (5) days have been set aside.

3On December 8, 2022, the Parties attended, before the Tribunal, to address procedural matters arising from the adjournment and to potentially consider a motion that had been served and filed by the Claimant on November 29, 2022. On December 7, 2022, the Respondent also served a motion, as well as made a request to have all motions heard together on a date to be determined. As such, a date was scheduled and the motions were heard on February 22, 2023.

4On that date, three motions were considered by the Tribunal, as follows:

i. Claimant’s Motion to Strike Witness Statement: The Claimant’s motion requested an Order striking the Respondent’s Witness Statement of a witness from the Niagara Escarpment Commission (“NEC”) or, in the alternative, an Order limiting the testimony of such a witness, requiring the Respondent to produce further documentary productions pertaining to the NEC, and costs of the motion.

ii. Respondent’s Motion to Withdraw Deemed Admissions: The Respondent’s motion requested an Order that it be permitted to withdraw deemed admissions, that the Respondent’s Response to Request to Admit be accepted and entered, and costs of the motion.

iii. Claimant’s Motion for Costs Thrown Away: The Claimant’s motion requested an Order that the Respondent pay the Claimant interim costs, namely costs thrown away resulting from the adjournment.

BACKGROUND

5On or around November 2017, one of the two existing access points to the Subject Property was removed by the Respondent, due to conducting construction work improvements to Highway 7.

6In its Notice of Arbitration and Statement of Claim, dated September 11, 2019 (“SOC”), the Claimant pleads that the Subject Property was used for both residential and small-scale commercial and industrial purposes, operated out of the heated garage on the property, which was accessed by way of a circular driveway with two entrances. It states that these uses are “existing uses,” and they are compliant with governing zoning and land use regulations. Part of the claim for compensation is that vehicle circulation on the Subject Property was impacted by the Respondent’s removal of one of the access driveways as part of its improvements to Highway 7, in the vicinity of the Subject Property. These claims are advanced as claims for injurious affection where no land is taken under the Expropriations Act and as claims under s. 6 and s. 14 of the Public Transportation and Highway Improvement Act.

7In its Reply to the SOC, dated November 15, 2019 (“Reply”), the Respondent refutes that the Claimant suffered any damages or that the business was permitted to operate from the purported location. Namely, the Respondent argues that the Subject Property is located within the Niagara Escarpment area and is zoned Rural, which means that the Claimant’s intended business would not be permitted to operate from the Subject Property. As such, the business the Claimant suggests was run from the Subject Property would not have been legally entitled to operate. Thus, the Respondent denies that the Claimant has suffered injurious affection or any loss or damages as a result of the closure of the access point.

8This ongoing matter has been subject to Procedural Orders (“PO”), with the last Tribunal-issued PO dated August 24, 2020. According to both Parties, throughout the conduct of this matter, the Parties have worked cooperatively to amend deadlines on consent and without requiring case management conferences before the Tribunal. For example, the dates with respect to the delivery of witness statements were amended on consent of the Parties, and no further PO reflecting amended dates was issued.

JURISDICTION AND APPLICABLE RULES

9Pertinent to all three motions was the Tribunal’s jurisdiction and ability to apply the Rules of Civil Procedure (“Rules of Civil Procedure”). In accordance with Rule 1.4 of the Ontario Land Tribunal’s Rules of Practice and Procedure (“Rules”), if the Rules do not provide for a matter of procedure, the Tribunal may adopt or follow the procedures set out in the Rules of Civil Procedure where appropriate. Moreover, Rule 1.3 confers considerable discretion upon the Tribunal over how it conducts itself, as it states that the Rules shall be liberally interpreted to offer the best opportunity for a fair, just, expeditious, and cost-effective resolution of the merits of the proceedings. Additionally, Rule 26 of the Rules deals specifically with Expropriation matters.

10The Claimant submitted that, with respect to the three motions before it, the Tribunal should rely on the Rules of Civil Procedure for guidance. The Claimant’s reasoning is discussed in further detail below. Moreover, the Claimant stated that, with respect to Expropriation Act matters, Rule 26.16 of the Tribunal’s Rules directs that the Rules of Civil Procedure apply unless the Tribunal orders otherwise at a motion. In this case, a portion of the claim is under the Expropriation Act, and thus, the use of the Rules of Civil Procedure could be said to be prescribed. Moreover, the Claimant submitted that the PO specifically indicates that the Rules of Civil Procedure are to be used and relied upon where necessary.

11The Respondent submitted that the Tribunal is not bound by the Rules of Civil Procedure, and their use by the Tribunal is strictly permissive, rather than prescriptive. Therefore, the Rules of Civil Procedure do not necessarily govern these proceedings. The Tribunal has the power under its own Rules and under its applicable statutes to control its own process.

CLAIMANT’S MOTION TO STRIKE WITNESS STATEMENT

12By way of this motion, the Claimant requests the following from the Tribunal:

a. An Order striking the Witness Statement of Amaraine Laven;

b. In the alternative to (a), an Order limiting the testimony of Ms. Laven to introduction of relevant documents produced by the Parties in this action;

c. If Ms. Laven is permitted to testify, an Order requiring the Respondent to produce any and all correspondence, instructions, and other documents provided to or received from the NEC in relation to this matter; and,

d. Costs of this motion.

13This motion was initially filed by the Claimant on November 29, 2022, to be heard at the outset of the Original Hearing Date. It arose in response to the Respondent’s Witness Statement dated November 23, 2022 (“Initial NEC Witness Statement”), indicating that an unnamed witness would be presented from the NEC and would speak to a number of topics. The Claimant raised issue with the NEC Witness being unknown, as well as the topics to be addressed, arguing that they would require opinion evidence from an expert qualified to interpret and apply the Niagara Escarpment Plan (“NEP”) to the facts relevant to the Subject Property, but the Respondent had not complied with the rules pertaining to expert witnesses.

14Following rescheduling of the motions, the Respondent served a new witness statement, dated December 23, 2022 (“New Witness Statement”), wherein the NEC Witness was identified to be Ms. Laven, a Senior Planner for the NEC. Her Curriculum Vitae was included. The New Witness Statement was also served with four new documents that the Respondent indicated Ms. Laven would introduce and speak to at the Hearing, including development permits from the 1970s and 1980s issued for the Subject Property.

Claimant’s Position

15The Claimant submitted that the New Witness Statement remained problematic in the manner proposed by the Respondent for the following reasons:

a. Ms. Laven’s testimony is not factual, but constitutes opinion evidence.

b. The Respondent has late-served a number of documents that Ms. Laven will attest to, which constitutes procedural unfairness in the Respondent calling this witness.

c. Allowing the testimony and admitting the late-served evidence would be contrary to the Rules of Civil Procedure and the Rules.

d. The Claimant will be prejudiced if the evidence is admitted and Ms. Laven is permitted to testify.

16First, the Claimant submitted that the topics set out in the New Witness Statement invite expert opinion evidence on the application and interpretation of the NEP based on the NEC’s information as to the historic uses of the Subject Property. The Claimant argued that this is inappropriate for the following reasons:

a. The Claimant relied on White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paragraphs 14-15 to state that it is a general rule that opinion evidence from non-expert witnesses is not admissible. In this case, no reason has been provided to depart from that rule.

b. The Respondent has not served an expert report or an acknowledgement of expert’s duty from Ms. Laven.

c. If the Respondent intends to rely on Ms. Laven as a “participating” expert witness, the opinion evidence intended to be led remains inadmissible. As explained in Raponi v. Olympia Trust Company, 2022 ONSC 4480 at paragraph 15, witnesses in this category may provide opinion evidence based on their observation of, or participation in, the events and issues. This exception only applies when the witness formed that opinion as part of the ordinary exercise of his or her skill, knowledge, training, and experience while observing or participating in the events at issue. In this case, Ms. Laven was not involved in the underlying events at issue.

d. The Respondent has said that Ms. Laven’s testimony should be admissible as she will be introducing business records. However, the New Witness Statement goes further than that. The details in paragraph 5 of the proposed witness statement indicate that Ms. Laven’s testimony will provide her interpretation and application of the NEP to the Subject Property and various historic applications submitted by previous owners.

17Second, the Respondent failed its obligation to properly disclose relevant documents, which were appended to the New Witness Statement and disclosed for the first time on December 23, 2022. Thus, the Claimant submitted:

a. If the Respondent was intending to rely on documents and have a witness from the NEC introduce those documents, they should have been disclosed to the Claimant well in advance of the Original Hearing Date. In accordance with Rule 30.08(1) of the Rules of Civil Procedure, the Respondent should not be permitted to rely on the documents absent leave of the Tribunal.

b. Leave should not be granted by the Tribunal. If the Respondent was intending to rely on Ms. Laven’s testimony and the documents appended to her witness statement, it had ample time to serve them properly in the time frames provided for by the rules and agreed upon by the Parties.

c. The Claimant was forced to bring a motion to receive even the most basic information as to this witness’s identity and qualifications. The New Witness Statement and attached documents, which address some of the Claimant’s previous concerns (such as providing a name for the proposed witness), still results in procedural unfairness as it affords the Respondent opportunity to benefit from the adjournment it requested to the Claimant’s detriment.

18Third, to be admitted in a proceeding before the Tribunal, expert evidence must comply with the Rules, the PO (as amended by the Parties), and the Rules of Civil Procedure. The Claimant submitted that the New Witness Statement does not comply with these requirements because:

a. The Respondent knew that Ms. Laven was the appropriate witness from the NEC as early as November 24, when it served the Initial NEC Witness Statement. In fact, the Respondent knew that Ms. Laven was the appropriate witness when it began the process of identifying an appropriate witness in early 2022. Yet, no particular witness was named in that statement. The only reason any witness has been named at all, in advance of the Hearing, is that the Hearing was adjourned, providing the Respondent with the opportunity to file the New Witness Statement.

b. Ms. Laven’s topics for discussion, such as those at paragraph 5 of the New Witness Statement, require proper compliance with the Rules and the Rules of Civil Procedure. As clarified in Durham Region Home Builder’s Association v. Ajax (Town), 2022 CanLII 21233 (ON LT) at paragraph 41, the fundamental objective of the pre-hearing exchange of witness statements and reply evidence, particularly expert witness statements, is focused upon proper disclosure. The Respondent failed to fulfill this objective and has only now taken steps to provide more information in response to the Claimant’s motion and its own adjournment request.

c. Rule 7.4 of the Rules confirms that if the expert’s witness statement and acknowledgement of expert’s duty form are not served and filed with the Tribunal within 30 days in advance of the Hearing, or as otherwise directed by the Tribunal, the expert may not be permitted to testify.

19Lastly, the Claimant would be prejudiced if the New Witness Statement was accepted as filed, specifically with respect to the portions that veer into expert opinion testimony without proper and timely disclosure of that opinion. If Ms. Laven is permitted to testify and the documents appended to her report are allowed into evidence, the Claimant will have to update its trial strategy, incur further costs, and spend additional preparation time.

Respondent’s Response

20The Respondent disagreed with the Claimant’s position, and stated that Ms. Laven should be permitted to testify and speak to each item listed on the New Witness Statement. The Respondent argued:

a. The motion is moot.

b. The Claimant is not prejudiced as it has been aware from 2021 that the Respondent intended on calling a witness from the NEC.

c. Ms. Laven will be called as a fact witness, not an expert witness.

d. Evidence should not be struck on an interlocutory motion.

e. The new documents attached to the New Witness Statement are development permit applications and/or permits, which are business records upon which Ms. Laven intends to rely to support her evidence.

21First, the Respondent submitted that this motion was moot as the Claimant’s concerns with the Initial NEC Witness Statement had been rectified by the New Witness Statement. The Respondent cited Patel v. Saskatchewan Health Authority, 2021 SKCA 115 at paragraph 186, saying that Courts have held that a matter may be considered moot where there is no longer a “live controversy,” and it would be a “waste of judicial resources” to hear the case on its merits. By way of the New Witness Statement, the Respondent has addressed the Claimant’s concerns. Namely, the Respondent has named the NEC Witness and has confirmed that the NEC Witness is not being proffered as an expert.

22Second, the Respondent submitted that as early as August 11, 2020, at the Respondent’s examination for discovery, it was contemplated that the Respondent may call a witness from the NEC, as the NEC is the authority regulating land use on the Subject Property. The Respondent subsequently confirmed this in its answers to undertakings dated September 2021. Moreover, the evidence to be proffered by Ms. Laven is entirely consistent with the Respondent’s position outlined in 2019 in its Reply.

23Lastly, the Respondent submitted that evidence should not be struck on an interlocutory motion unless there is some special reason to do so. Striking evidence on an interlocutory motion is reserved for use only in the clearest of cases. For the evidence to be struck, it must be so obviously inappropriate that it must be struck or that the need to respond to the evidence would entail unreasonable effort or cost or result in the filing of additional voluminous material. The Respondent relied on the following cases: Neighbourhoods of Windfields Ltd. Partnership v. Death, [2007] O.J. No. 3042 (S.C.J.) at paragraphs 33-38; and Allianz Global Risks US Insurance Co. v. Canada (Attorney General), 2016 ONSC 29, [2016] O.J. No. 190 (S.C.J.) (“Allianz case”) at paragraphs 15-16, 18, and 26-27. With respect to lay witness evidence, tribunals have found that “only in clear cases would the Tribunal be ready to find proposed lay witness evidence inadmissible on a preliminary motion, prior to the witness being examined and cross-examined.” The Respondent relied on: Graat v. The Queen, 1982 CanLII 33, [1982] 2 SCR 819 at p. 835; and Canada (Commissioner of Competition) v. Vancouver Airport Authority, [2018] C.C.T.D. No. 15 at paragraph 12.

24Additionally, the Respondent submitted that the Courts have found that evidence can be struck at an interlocutory motion where (a) the deponent failed to state the source of the information; (b) the deponent raised legal arguments; or (c) the deponent made allegations that were scandalous, frivolous, or vexatious. The Respondent relied on: Gutierrez v. The Watchtower Bible and Tract Society of Canada et al., 2019 ONSC 3069 at paragraph 32; Metzler Investment GMBH v. Gildan Activewear Inc., [2009] O.J. No. 3394 (S.C.J.) at paragraph 32; and Chopik v. Mitsubishi Paper Mills Ltd., [2002] O.J. No. 2780 (S.C.J.) at paragraph 26. The Respondent argued that none of those circumstances applied here.

25The Respondent confirmed that the NEC Witness was not being presented as an expert witness, which is why the Respondent did not serve a witness statement or report from the NEC when the Parties exchanged expert reports on March 25, 2022. Rather, the NEC Witness is intended to speak to: communications between the Claimant and the NEC, any information regarding NEC permits attached to the Subject Property, the zoning of the area (a fact which is not contested), and verification of land-use designations at the relevant periods. The Respondent submits that this constitutes factual inquiries informed by objective planning criteria pursuant to NEC policy and procedure.

26Moreover, the Respondent added that, should the Tribunal determine that any evidence proffered by the NEC Witness is opinion evidence, this evidence falls within the boundaries of what has been recognized as acceptable lay opinion evidence. Courts are willing to receive opinions from lay witnesses where this individual has “actual knowledge” of the observed facts, and testifies to facts within his or her observation, experience and understanding of events, conduct or actions. The Respondent relied on Toronto Real Estate Board v. Commissioner of Competition, 2017 FCA 236 (“TREB case”) at paragraphs 80-81, 90; and Canada (Commissioner of Competition) v. Parrish & Heimbecker, Ltd., [2020] C.C.T.D. No. 15 (“Parrish case”) at paragraph 7. Specifically within the tribunal context, the Federal Court of Appeal in the TREB case at paragraph 79 has held that opinion from a lay witness is acceptable, "where the witness is in a better position than the trier of fact to form the conclusions; the conclusions are ones that a person of ordinary experience can make; the witnesses have the experiential capacity to make the conclusions; or where giving opinions is a convenient mode of stating facts too subtle or complicated to be narrated as facts."

27In this case, any conclusions made by the NEC Witness regarding the Subject Property will be based on objective criteria pursuant to NEC policy and procedures, determinations which could theoretically be made by a person with ordinary experience after scrutinizing the criteria for acceptable use under the NEC. Any further evidence that may engage the NEC Witness’ position as an employee of the NEC is also acceptable, due to the NEC Witnesses’ experience working with the legal instruments that govern NEC regulation. Evidence on this point is also acceptable pursuant to the exception that witnesses who have the experiential capacity to make the conclusions can proffer lay opinion evidence, as described in the TREB case. Any concerns with respect to that proposed evidence go to the probative value and to the weight that the Tribunal should give to it, not to admissibility. Issues of reliability and weight can be addressed at the Hearing. For this, the Respondent relied on the Parrish case at paragraph 16; and the Allianz case at paragraphs 19 and 27.

RESPONDENT’S MOTION TO WITHDRAW DEEMED ADMISSIONS

28By way of this motion, the Respondent requests the following from the Tribunal:

a. An Order granting leave to the Respondent to withdraw deemed admissions set out in the Request to Admit pursuant to Rule 51.05 of the Rules of Civil Procedure;

b. An Order accepting and entering the Crown’s Response to Request to Admit (the “Response”); and,

c. Costs of this motion.

29On September 9, 2022, the matter was set down for a Hearing to commence on the Original Hearing Date. On the same day, the Claimant issued its Request to Admit, and the Parties conferred and agreed that a PO was not required as the Parties would use the defaults in the Rules of Civil Procedure and continue to communicate about reasonable deadlines.

30On November 15, 2022, the Respondent issued its Response. On November 17, 2022, the Claimant advised the Respondent that the Response was not provided within 20 days, and in accordance with the requirements of the Rules of Civil Procedure, the Respondent was deemed to admit the truth of the facts set out in the Claimant’s Request to Admit.

31The Claimant’s Request to Admit was 24 paragraphs long. The Respondent takes issue with admissions number 5, 9-10, 13, and 15-23. The Respondent partially admits, with modifications, Responses 5, 9-10, 13, 16, and 18-19. The Respondent would like to withdraw, in full, the following admissions, which it states are of particular prejudice:

a. #17. The Nochez property was historically used in part for commercial purposes, in particular, the heated garage.

b. #20. Vehicles entering and exiting the property can no longer circulate efficiently.

c. #21. The single access remaining as a result of the Respondent’s construction eliminated site circulation and increased vehicle conflicts.

d. #22. The reduction of the overall efficiency and circulation of the property has deterred customers from attending at the Nochez property and the garage and business operated from it.

e. #23. Nochez is no longer able to use the Nochez property for business operations. Nochez has had to rent an alternative location in order to continue servicing its customers.

Respondent’s Position

32The Respondent submitted that:

a. The requirements in the Rules of Civil Procedure do not have to be applied strictly. In fact, strict adherence to the Rules of Civil Procedure where the fact being “admitted” is and has been knowingly contested, does not serve the interests of justice (Furgiuele v. Don Casselman Global Enterprises, 2013 ONSC 7032 (“Furgiuele case”) at paragraph 51).

b. The test for withdrawing deemed admissions is met here, as:

a. There is a triable issue.

b. There is a reasonable explanation for delay.

c. The Claimant is not prejudiced.

33Rule 51.03(2) of the Rules of Civil Procedure provides that a failure to respond to a Request to Admit within 20 days results in a deemed admission. In response, the Respondent relied on Acchione v. Caledon (Twn.), 2022 CanLII 42283 (ON LT) (“Acchione case”), and stated that the Tribunal may have regard for the Rules of Civil Procedure, but due to the permissive nature of Rule 1.4 of its Rules, it is not bound to apply them strictly (Acchione case at paragraph 25). The Tribunal’s objective in applying or not applying the rules is to ensure that it receives the best possible evidence to allow it to determine the issues in a fashion that is expeditious, fair, and just (Acchione case and Keep Napanee Great v. Ontario (Environment, Conservation and Parks), 2021 CarswellOnt 13444 Ontario Land Tribunal at paragraph 18).

34With respect to the test for withdrawing the deemed admissions, the Respondent indicated that all three branches of the test were met, as explained below.

Triable Issue

35The first part of the test, outlined in caselaw, requires the Party seeking the withdrawal to show that the proposed change raises a triable issue. The Respondent relied on a number of cases, including: Antipas v. Coroneos, 1988 CanLII 10348 (ON HCJ), 1988 CarswellOnt 358 Ontario Supreme Court, High Court of Justice at paragraph 14; Champoux v. Jefremova, 2021 ONCA 92 at paragraph 28, Seal Tech Basement Sealing Inc. v. Prychitko, 2014 ONSC 6038 (“Seal Tech case”) at paragraph 22; and Rosedale Kitchens Inc. v. 2114281 Ontario Inc., 2013 ONSC 3015 (“Rosedale case”) at paragraph 8. In determining whether the admissions are related to a triable issue, the question is not whether the Party will succeed at trial. Rather, whether or not the issue is triable falls somewhere between "legally viable" and a "genuine issue for trial" (Duninger Corporation v. Montour, 2022 ONSC 4605 (“Duninger case”) at paragraph 26; and Phillips v. Disney, 2018 ONSC 1021 at paragraph 22). Moreover, while the role of the Request to Admit is to support the goal of judicial economy, inherent in its purpose is the idea that it will help the court arrive more efficiently at a meritorious decision, not the opposite (Furgiuele case at paragraph 48).

36In this case, the deemed admissions contained in the Response relate to several triable issues that affect the core of the proceedings. The triable issues include the purported effects of the closure of the second entrance on traffic circulation; the alleged effect of the deterrence of customers on the Claimant’s business; the alleged inability to use the Subject Property for business operations; and the alleged rental of an alternative location to service the Claimant’s customers.

37If upheld, the deemed admissions would suggest that the Claimant is not required to establish that it was harmed by the closure. The requirement to establish one’s damages is a fundamental and basic requirement of the litigation process. If the Response remains in its current form, the deemed admissions do not represent “the product of a meaningful consideration of its position" (Furgiuele case at paragraph 45) and run counter to the Respondent’s position throughout these proceedings. Thus, the admissions would irreparably prejudice the Respondent.

Reasonable Explanation for Delay

38The second part of the test requires the Party seeking the withdrawal to show that there is a reasonable explanation for the withdrawal, such as inadvertence or wrong instructions. The Respondent relied on some of the same cases as outlined at paragraph [35] of this Decision. To establish that a delay in responding to a Request to Admit is based upon an "inadvertence", the Party must describe what went “procedurally awry” that resulted in the failure to respond (Falco v. P.V. & V.Insurance Centre, 2007 CanLII 31783 (ON SC) at paragraph 19). However, the Court in the Duninger case at paragraph 6 stated that the Rules of Civil Procedure “should not reward taking advantage of, or acting upon, slips, mistakes, or inadvertence by counsel.” Moreover, the Courts have held that a short delay in responding to a Request to Admit cannot be taken to be an abuse of process and provides a basis for withdrawing any deemed admissions that would otherwise flow (Furgiuele case at paragraph 42; Docouto v. Ontario, 2000 CarswellOnt 400 (ON Div.) at paragraph 5).

39The Respondent’s explanation for the delay in responding, which it submitted was a reasonable explanation, was that:

a. Respondent’s Counsel was involved in a month-long inquest in Hamilton from September 26 to October 21, 2022 (which Claimant’s counsel was aware of). Prior to September 26, 2022, she was preparing for the inquest. Subsequently, her son became seriously ill for two weeks, after which Counsel herself was ill and was off work, then working part-time, then returning full-time on November 12, 2022. The Response was subsequently delivered on November 15, 2022.

b. It would be inefficient and costly for both Parties to have a colleague from the Respondent’s office respond on her behalf. She was Counsel since 2019 and there would have been considerable work and correspondence from both sides for a colleague to sift through. It would have been unreasonable to have a colleague step into the matter, which has been underway for three years, and attempt to make meaningful responses, on behalf of the Respondent, in order to meet the deadline.

c. Counsel for both Parties have continually operated without the strict adherence to the Rules of Civil Procedure, even eschewing the need for POs throughout. For example, as detailed in paragraph [8] of this Decision, dates in the PO were changed previously without the issuance of a new PO.

40The Notice of this Motion was served and filed on December 7, 2022. The Respondent was asked what their intent was with respect to the deemed admissions if the Hearing had commenced on the Original Hearing Date. The Respondent indicated that they would have been dealt with by way of motion regardless, unless the Claimant consented to the withdrawal of the deemed admissions. Her delay in serving the Notice of Motion was due to time spent attempting to resolve the issue with the Claimant’s Counsel through means other than a motion. When the Hearing was adjourned on November 30, 2022, the urgency for filing materials somewhat subsided, which is why the Notice of Motion was served / filed on December 7, 2022. However, the Respondent reiterated that the Claimant was aware of its position on the issue prior to December 7, 2022.

No Prejudice to Claimant

41The third part of the test is that the withdrawal will not result in any prejudice that cannot be compensated for in costs. Moreover, the Respondent relied on Bannon v. Thunder Bay (City), 2000 CanLII 5708 (ON CA) (reversed on other grounds at Bannon v. Thunder Bay (City) 2002 SCC 20, [2002] 1 S.C.R. 716) to state that it would be entirely appropriate to grant leave to withdraw deemed admissions where a Party was not taken by surprise by the positions taken by the Party seeking to withdraw the admissions.

42In this case, the Respondent submitted that the Claimant will not suffer prejudice if the admissions are withdrawn and the Response to Request to Admit is admitted and entered. The Response is consistent with the Respondent’s positions outlined in its Reply as early as 2019, wherein it refuted that any damages were suffered or that the business was permitted to operate from the Subject Property.

43In contrast, the Respondent will suffer irreparable harm to its defence of the claim, and its position at trial would be significantly prejudiced, if leave is not granted to withdraw the deemed admissions. By way of this motion, the Respondent is requesting relief that would permit it to continue to advance its defence, which it would not be able to do if the admissions remain as they are.

Claimant’s Response

44The Claimant relied on the following to dispute the withdrawal of the deemed admissions:

a. The Rules of Civil Procedure are mandatory with respect to the Request to Admit in this case.

b. The Respondent’s actions ran contrary to the PO governing this proceeding.

c. The Respondent has not satisfied the test to allow it to withdraw its deemed admissions. The Party seeking leave must meet all three parts of the test.

45With respect to the Rules of Civil Procedure, the Claimant submitted that the Request to Admit and the requirement to respond were contemplated by the PO, which specifically indicated that this item would be governed by the time frames set out in the Rules of Civil Procedure. That portion of the PO was never amended, throughout the various iterations. There is no reason or caselaw before the Tribunal to explain why the 20-day time-frame in the Rules of Civil Procedure, incorporated by reference into the PO, should not apply in this case.

46With respect to the PO specifically, the Claimant stated that it set out a process for exchanging Requests to Admit, which had not been amended or revised at any point. Moreover, the Parties had not contemplated or agreed that the paragraphs of the PO relating to the Request to Admit would not apply. The Claimant complied with the requirements outlined in the PO to serve its Request to Admit at least 90 days before the scheduled Hearing. However, the Respondent did not comply with its obligations. Of note, the Claimant’s Request to Admit contained a provision notifying the Respondent that a response was required within 20 days, failing which it would be deemed to admit the truth of the facts set out in the Request to Admit for the purposes of this proceeding.

47With respect to the test for withdrawing the deemed admissions, the Claimant indicated that none of the three parts of the test were met, as explained below.

No Triable Issue

48The Respondent has raised particular concern about the deemed admissions arising from items numbered 17 and 20-23, which it seeks to withdraw in their entirety. None of these deemed admissions raise triable issues or eliminate the Respondent’s ability to raise the defences set out in its Reply. It is not the case, as the Respondent is suggesting, that the facts are in “serious controversy” (Furgiuele case at paragraphs 50-52). The deemed admissions merely limit the issues, which is the purpose of a Request to Admit.

49For example, if the Respondent is deemed to admit that the property had historically been used for commercial purposes and that removal of the access driveway affected circulation of vehicles and deterred customers from attending the business, it would still be at liberty to argue that no compensation flows because the use was not legal. All that arises from the deemed admissions is that the evidence required to establish the facts of the case will be somewhat streamlined and the focus will instead be on the legal arguments raised by both Parties. In short, the Claimant stated that the deemed admissions would not alter the factual matrix arising at the Hearing.

50With respect to the partial admissions, namely items numbered 5, 9-10, 13, 16, and 18-19, the Claimant submitted that they also do not raise triable issues. The partial admissions represent an attempt by the Respondent to re-state the same facts in a way that is more favourable to its position.

No Reasonable Explanation for Delay

51The Claimant relied on the Seal Tech case at paragraphs 22 and 28, and the Rosedale case at paragraph 8. The test is not simply to have the Party in default, or its lawyer, say the default occurred because of inadvertence, as this claim would render any time limit meaningless. Rather, there must be some explanation as to what went procedurally awry in the solicitor’s office that resulted in the failure to respond. The failure of a Party to understand the importance of an issue until it reaches the stage of trial preparation is not inadvertence or mistaken instructions.

52The Respondent’s explanation for delay, outlined at paragraphs [39a and 39b] of this Decision, does not establish inadvertence or provide an explanation as to why no response was delivered by the deadline. The Respondent has not explained why it did not provide its Response in the time period between September 6 and September 26, 2022, nor did it request an extension within that timeframe. Of note, the Respondent acknowledged receipt of the Request to Admit on September 9, 2022, and indicated an intention to respond within a few weeks. On November 9, the Claimant submitted a joint document book to the Respondent for its consideration, which included the agreed-upon facts based on the Request to Admit. It was after this point that the Respondent took a stance with respect to the deemed admissions.

53The Claimant clarified that this is not a case where one Party is seeking to take advantage of the error of another Party. The present matter is distinguishable from the cases relied upon by the Respondent for that proposition. For example:

a. In the Duninger case, the Defendant delivered a rule 51.03 compliant Response to Request to Admit but inadvertently failed to respond to 5 of the 57 requests.

b. In the Furgiuele case, the Plaintiff served a 248-paragraph Request to Admit, the Defendant indicated that he did not propose answering the lengthy request right away, as the Parties were considering settlement proposals and it would be a waste of time and money to “respond to the document in detail before giving settlement a chance”. The Plaintiff brought a motion a year and a half after the Defendant’s lawyer served the response and during that time, never mentioned the Request to Admit or a concern over the timing of the Defendant’s response.

54According to the Claimant, the present case is distinguishable. In this case, granting leave to the Respondent to withdraw its Response will allow it to benefit from its adjournment request to the Claimant’s detriment. The Response was sent to the Claimant on November 15, 2022. On November 17, 2022, the Claimant advised the Respondent that it would not consent to the withdrawal of admissions, and the Respondent would need to bring a motion to withdraw the deemed admissions. On November 23, 2022, the Claimant advised that it was maintaining its position on the Response. The Respondent proposed revisions to the Response on November 24 and requested a response by mid-day the same day so that it could bring its motion. No Notice of Motion or notice of the intention to bring a motion was submitted until December 7, 2022. Between November 17, 2022 and November 30, 2022, when the Respondent requested an adjournment, it took no action to seek leave of this Tribunal to withdraw the admissions. It is not clear why the Respondent did not deliver its Notice of Motion before the Original Hearing Date, but rather waited until December 7, 2022, despite knowing the Claimant’s position since November 17, 2022.

Prejudice to Claimant

55The Claimant has suffered prejudice that cannot be compensated for in costs. The Request to Admit was served in contemplation of the upcoming Hearing. The Claimant based its trial preparation and litigation strategy on the case as it was, including the deemed admissions. It made decisions about what evidence would and would not be necessary to marshal at the Hearing based on the admissions in the Request to Admit, particularly about the historic uses of the property. This establishment of a Hearing strategy cannot be compensated for by an award of costs (Rosedale case at para 8). The Claimant submits that it followed the rules and the timelines in the PO and there needs to be consequences to the Respondent not doing the same.

CLAIMANT’S MOTION FOR COSTS THROWN AWAY

56By way of this motion, the Claimant requests from the Tribunal an Order that the Respondent pay the Claimant’s costs thrown away arising from the adjournment in the amount set out in its costs outline, and the costs of this motion.

57This motion arose as a result of the adjournment of the Original Hearing Date, which was adjourned on November 30, 2022, due to the Respondent’s key witness, Kevin Kelly, suffering a medical issue and requiring emergency surgery. The adjournment request was on consent and was granted by the Tribunal.

Claimant’s Position

58The Claimant expressed sympathy for the Respondent’s reasons for the adjournment, but explained that a payment for costs thrown away is appropriate in the circumstances for the following reasons:

a. The Tribunal has jurisdiction to award costs thrown away.

b. Costs are warranted in such a situation.

c. The Claimant’s costs should be awarded in accordance with the Bill of Costs provided to the Tribunal at the motion, or in the alternative, in an amount of $5,500 - $5,700.

59First, the Tribunal has jurisdiction to award costs thrown away pursuant to its Rules and enabling legislation. The Claimant relied on Rules 1.4, 23.3, 23.8, 23.9 of the Rules; Rules 57.01 and 57.03 of the Rules of Civil Procedure; s. 25.1 of the Statutory Powers and Procedure Act; and s. 13 of the Ontario Land Tribunal Act. The Tribunal itself awarded costs thrown away in Teshuba v. Windsor (City), 2004 CarswellOnt 7250 (ON OMB) (“Teshuba case”) at paragraphs 1 and 4.

60Second, the Claimant explained that costs thrown away are warranted for the following reasons:

a. The Claimant is a small, family-owned business. This proceeding has been lengthy and expensive. It has taxed the Claimant’s resources and, without payment of some costs, it may not be able to proceed to a Hearing of the matter on its merits. The Claimant referred to the principles underlying interim costs awards, wherein such awards are appropriate where they are required “to provide a basic level of assistance necessary for the case to proceed” (Anderson v. Alberta, 2022 SCC 6 at paragraph 19).

b. Relying on Caldwell v. Caldwell, 2015 ONSC 7715 at paragraphs 8-11, the Claimant submitted that the purpose of a “costs thrown away” award is to indemnify a Party for the wasted time for trial preparation arising from the adjournment, namely work that will have to be re-done because of an adjournment. As the need for an adjournment arose only two business days before the Hearing was set to commence, the Claimant had largely prepared its case and was ready to proceed. The costs expended to this point will need to be duplicated. Thus, providing indemnification to the Claimant for those wasted costs is appropriate.

c. An award of costs thrown away when a Hearing is adjourned because of a medical emergency is still an accepted practice. Costs thrown away are awarded in any event of the cause. The purpose is not to penalize the Party who sought the adjournment, but to indemnify the opposite Party for their wasted time incurred for trial preparation or trial work arising therefrom. The Claimant relied on Syed v. Petrie, 2020 ONSC 2513 at paragraphs 14-20.

d. The Respondent served a witness statement with no name, sought an adjournment of the Hearing, and refused to pay any costs thrown away arising from that adjournment, despite acknowledging (detailed below) that there was wasted trial preparation time. The Tribunal must not allow the Respondent to file the New Witness Statement, rely on documents previously undisclosed, and withdraw admissions without having to pay costs. Moreover, the only reason the Respondent was able to file the New Witness Statement was because the Claimant acted reasonably by consenting to an adjournment sought for medical reasons.

61With respect to the amount of costs thrown away to be awarded, the court must determine what costs have actually been wasted and may be awarded on a substantial indemnity scale depending on the circumstances. Significant delay is an aggravating factor (Campsall v. Steve Crea Homes Ltd. et al, 2018 ONSC 480 at paragraph 6). In this case, specifically as a result of these motions and new information provided by the Respondent, which both happened as a result of the adjournment, the Claimant will incur additional costs to prepare. The Claimant will also need to spend additional time and money preparing and meeting with witnesses and reviewing documents in advance of the Hearing. Thus, for costs thrown away, the Claimant sought $30,976.69, inclusive of HST. In accordance with the costs outline provided, this amount detailed the Claimant’s costs incurred between September 9, 2022 to December 16, 2022 for Hearing preparation and the preparation of the original motion to strike the Initial NEC Witness Statement.

62In response to questions of the Tribunal, Claimant’s counsel estimated that the wasted time of both co-Counsel amounted to about 15 hours, which translated to about $5,500 - $5,700.

Respondent’s Response

63The Respondent submitted that costs thrown away are not warranted in this case for the following reasons:

a. Parties are not entitled in this instance to costs under the Tribunal’s Rules. Costs are payable only when a Party’s conduct was unreasonable, frivolous, vexatious, or undertaken in bad faith. The Claimant has made no allegations in this regard.

b. If the Claimant is successful at trial, then costs pursuant to the Expropriations Act would be awarded accordingly and would presumably cover the costs being claimed here.

c. If costs thrown away are considered, the amount sought by the Claimant is inappropriate. The Respondent suggested the amount of $1,000.

64With respect to jurisdiction, the Respondent relied on Rule 23 of the Rules, which states that costs are only awarded against a Party if the Party has engaged in a course of conduct that is unreasonable, frivolous or vexatious, or if the Party has acted in bad faith. The Respondent submitted that none of this conduct exists in the present case, nor has any been suggested by the Claimant. The Respondent cited a string of Tribunal cases confirming that cost awards by the Tribunal are only available on rare and extraordinary occasions and are based on the conduct of the Party that costs are awarded against. The Respondent submitted that no allegations have been made of improper conduct and as such, no costs should be awarded at this juncture.

65With respect to the quantum, the Respondent stated that, if any costs are to be awarded, they should be limited to those costs borne in preparation for trial that must be duplicated as a result of the adjournment. Though the Claimant seems to be seeking payment of all of its legal costs since September 9, 2022, much of the costs incurred in this period cannot be said to be wasted and can be re-used. In support of this position, the Respondent stated the following:

a. In Graziano et al v. Ciccone, 2017 ONSC 362 and Pryce v. Pryce, 2019 ONSC 3441 (at paragraph 13), the Court indicated that some of the time spent on tasks such as the opening statement, questions for witnesses, and the draft order were not completely wasted.

b. The Respondent conceded that some additional witness and counsel preparation will be required to refresh one’s memory prior to trial, but submitted that wholesale changes in approach and strategy will likely not occur. The Claimant is well aware of the Respondent’s position, and has been since 2019. Thus, it is well aware of how their witnesses will fit into their litigation strategy. As such, even costs associated with witness preparation should not be included on a wholesale basis.

c. The amount sought by the Claimant should be substantially decreased as the Claimant is currently seeking all or nearly all of its costs to date, rather than simply costs thrown away. For example, the Claimant is seeking the cost of work conducted on a joint brief or on research, which are not likely to change. The Claimant is also seeking the costs of these motions as costs thrown away, which is not appropriate as the two above-noted motions would have occurred regardless of the adjournment. Lastly, any costs incurred after the adjournment date of November 30, 2022 should not be considered since they are “costs at large” and not “costs thrown away,” as discussed and clarified in Milliken & Co. v. Interface Flooring Systems (Canada) Inc., 2003 FC 1258 at paragraphs 94-95.

d. If any amount is to be considered, it should be $1,000, which was the amount previously awarded by this Tribunal in the Teshuba case.

COSTS OF THE MOTIONS

66Both Parties requested costs of their respective motions. Neither Party provided a costs outline or suggested an amount.

Tribunal’s Analysis and Findings

Jurisdiction and Applicable Rules

67The Tribunal has the power to grant remedies under the Rules of Civil Procedure or make orders as it sees fit. The Tribunal may, by order, establish and direct the Procedure at a Hearing event unless an Act provides differently in order to ensure the issues in dispute are disposed of in the most fair, just, expeditious, and cost-effective manner. This power is outlined in Rule 22.3 of the Rules, s. 25.1 of the Statutory Powers and Procedure Act, and s. 13 of the Ontario Land Tribunal Act.

68Accordingly, in this case, the Tribunal applied the Rules of Civil Procedure where necessary. This practice is also in line with the PO governing this proceeding.

69Of note, there was significant discussion with respect to the adjournment and how that may have impacted the nature of the motions with respect to the NEC Witness and to the deemed admissions. The Tribunal did not make its determinations on the basis of how the adjournment had factored into these motions. In other words, the Tribunal considered each issue in light of its merits, rather than whether the adjournment had impacted the necessity for the motion or how findings would have been different if not for the adjournment.

Claimant’s Motion to Strike Witness Statement

70The Tribunal determined that the New Witness Statement would not be struck and granted the Claimant’s alternative relief. Namely, the Tribunal found that the testimony of Ms. Laven is to be limited to the introduction of relevant documents, which have been produced by the Parties in this action. The Tribunal directed that Ms. Laven’s testimony be limited to factual testimony, and not that of an expert witness. Moreover, the Tribunal ordered that the Respondent produce any and all correspondence, instructions, and other documents provided to or received from the NEC in relation to this matter. Lastly, the Tribunal ordered that all documentary exchange, from both Parties, be completed by March 8, 2023.

71In making its determination, the Tribunal relied on the following:

72With respect to the Respondent’s position that this motion was now moot as a result of the New Witness Statement, the Tribunal disagreed. The concern remained with respect to limiting Ms. Laven’s testimony, a live controversy, which has now been rectified by way of this motion.

73With respect to striking the New Witness Statement, the Tribunal found that admitting the statement was not prejudicial to the Claimant as it had been aware, as early as September 2021, that the Respondent intended to rely on a witness from the NEC. Thus, the Claimant should have, and likely had, contemplated the NEC Witness’ role in its trial strategy. Moreover, the Respondent’s position, as outlined in its Reply, is consistent with the scope of the NEC Witness’ testimony. The NEC is the authority regulating land use on the Subject Property, which the Claimant would have to address at the Hearing regardless.

74With respect to the Respondent’s submissions regarding striking evidence by way of interlocutory motions, the Tribunal has not struck the evidence, so the Tribunal is not making a finding on this submission. However, the Tribunal notes that this motion was intended to be heard on the first day of the Original Hearing Date. When this did not occur, the Parties agreed to have this motion heard prior to the Hearing. As such, it was appropriate for the Tribunal to hear and make a determination on this motion at this juncture.

75With respect to limiting Ms. Laven’s testimony, the Tribunal agreed that Ms. Laven cannot be proffered as an expert witness due to various concerns raised by the Claimant, outlined above. However, the Respondent has also confirmed that it has no intention of having Ms. Laven provide expert opinion evidence. As such, Ms. Laven’s testimony will be limited to the introduction of relevant documents. She cannot address questions of law or issues better addressed by expert witnesses.

76With respect to documentary disclosure, the Tribunal did not strike the New Witness Statement, which included new documents to be introduced by the witness. If the Respondent is to rely on these, then procedural fairness would require that the Claimant’s request for records be addressed and responded to in full.

77Of note, with respect to the Claimant’s submissions that the Respondent has taken advantage of the adjournment by revising its witness statement and submitting additional documents, the Tribunal notes that the Claimant was aware that the Respondent disputed its position on the NEC Witness. As such, the Claimant has not suffered prejudice as it would have to have attended the Hearing prepared to respond to the NEC Witness and additional information brought forth by the NEC Witness.

78Lastly, the Tribunal ordered that documents be provided by March 8, 2023, to allow the Parties time to prepare for the upcoming Hearing on March 27, 2023.

Respondent’s Motion to Withdraw Deemed Admissions

79The Tribunal determined that the Respondent’s relief would be granted, and the Respondent would be permitted to withdraw its deemed admissions. The Parties were directed to work together to generate a new agreed-upon Statement of Facts to become part of the record.

80In making its determination, the Tribunal relied on the following:

81The Tribunal applied the Rules of Civil Procedure and the tests that flowed from those rules. The Tribunal agreed that the PO had specifically indicated that the Rules of Civil Procedure should apply to Requests to Admit. Moreover, the Tribunal’s Rules contemplate the application of the Rules of Civil Procedure in instances where the Rules themselves do not provide guidance, such as Requests to Admit.

82The test for withdrawing deemed admissions is met here, as:

a. There is a triable issue.

b. There is a reasonable explanation for delay.

c. The Claimant is not prejudiced.

83On an interlocutory motion, such as this one, along with considering the applicable tests and legislation, an adjudicator must also ensure that the evidence that comes before the Hearing adjudicator constitutes the best evidence to allow for a fair, just, expeditious, and cost-effective decision. Upon review of the contentious items on the Request to Admit, and the Respondent’s proposed revisions to them, the Tribunal agreed that the items could be construed in ways that could impact the liability and damages claim that the Claimant has the onus to prove at the Hearing. As such, the Tribunal agreed with the Respondent that the contentious admissions posed a triable issue. If the deemed admissions remained, they may impact a trier-of-fact’s ability to make a decision. The Tribunal notes that, as clarified in the caselaw, in deciding whether a triable issue existed, it did not make a decision on the merits of the deemed admissions, but simply assessed whether they posed legally viable questions.

84The Tribunal found that there was a reasonable explanation for delay, especially in the context of how this proceeding has unfolded to date. The Respondent provided an explanation of why the Responses were filed on November 15, 2022, which the Tribunal accepted. The Tribunal also agrees that it would not be an efficient use of time or resources for either Party to have another Counsel for the Respondent, without knowledge of the matter, respond in order to meet a deadline on a file where deadlines had not been strictly adhered to. Throughout this proceeding, both sides had remained flexible, and deadlines had been adjusted as necessary. For example, while examinations for discovery took place in August 2020, responses to undertaking requests were sent in September 2021. Another example is that dates with respect to the delivery of witness statements were amended on consent of the Parties. In this context, the Respondent’s delay of a few weeks in providing its Responses was reasonable.

85With respect to the Respondent’s alleged delay in bringing this motion, the Tribunal found that this was not relevant to the test regarding withdrawal of deemed admissions.

86The Tribunal found no clear prejudice to the Claimant resulting from the deemed admissions being withdrawn that could not be compensated for in costs. The Respondent had outlined its position as early as 2019 in its Reply. Subsequently, in relation to the deemed admissions, the Respondent outlined its position on November 15, 2022 after which the Claimant became aware that it had to prepare its claim based on the contingency that the deemed admissions (deemed to have been admitted only one and half months before on September 26, 2022) may be set aside. If the Respondent had served its Motion Record immediately, due to the timing and proximity to the Original Hearing Date, the deemed admissions motion would very likely have been addressed on the first day of the Hearing. In that circumstance, the Claimant would have been required to prepare to respond to that motion and prepare for the possibility that it would be granted. As such, the Tribunal did not agree with the Claimant that it could have proceeded at the Hearing based on the understanding that these facts had been admitted.

87Lastly, the Tribunal heard submissions with respect to the Respondent’s attempt to take advantage of the adjournment. The Tribunal found that this was not relevant to the test regarding withdrawal of deemed admissions. Moreover, according to the Respondent, it had intended to address this issue at the Original Hearing Date, and the Tribunal had no reason to believe otherwise.

Claimant’s Motion for Costs Thrown Away

88At the Motion, the Tribunal determined that the Claimant’s relief would be granted and costs thrown away would be awarded in an amount to be determined. The Tribunal has now determined that $5,500, exclusive of HST, in costs thrown away is warranted, and directs the Respondent to make payment of that amount to the Claimant forthwith.

89The Tribunal acknowledges that although the Respondent was responsible for the adjournment, the Tribunal is not attaching any fault to that responsibility. The adjournment was requested due to illness which was unavoidable. The Tribunal further acknowledges that despite the lack of fault, there remains a cost consequence to the adjournment, which triggers the award of costs thrown away to indemnify the Claimant for wasted preparation time resulting from the adjournment. The Tribunal has jurisdiction to make such an award and has done so.

90The Tribunal found the Respondent’s argument, that these costs would be covered if the Claimant was successful at the Hearing, problematic. If the Claimant is not successful at the Hearing, then the Claimant’s costs would not be covered and the Claimant would not be compensated for the costs resulting from the adjournment. Moreover, as the Claimant explained, if costs recovery was limited to successful Parties, then costs thrown away would never be appropriate in any circumstance. Thus, it cannot be said that these costs should be considered after the Hearing.

91The Tribunal does not agree with the Claimant’s position that the quantum of costs thrown away has been compounded due to the adjournment allowing for the Hearing of these motions. The motion regarding the NEC Witness and the motion regarding the deemed admissions would very likely have been heard regardless of the adjournment.

92The difficult task that the Tribunal faces is attaching a quantum to the costs thrown away by the Claimant. The Tribunal finds that an award of costs thrown away in the amount of $5,500, exclusive of HST, as calculated by the Claimant, is appropriate in this case. The Tribunal further finds that an award of costs thrown away is not an arbitrary award and does not agree with the Respondent that an amount of $1,000 is appropriate. The Respondent did not provide any evidence to the Tribunal demonstrating that the work or preparation performed by the Claimant would amount to $1,000. The sole basis for the quantum of $1,000 was the Teshuba case, and not based upon the actual costs outline provided by the Claimant.

Costs of the Motion

93As the Tribunal determined that the Rules of Civil Procedure would provide guidance, and due to the interlocutory nature of these motions, the Tribunal considered the Parties’ request for the costs of their motions.

94The Tribunal determined that neither Party is entitled to costs of these motions. There was no behaviour demonstrated that would warrant a costs award and the three motions being heard at this juncture will assist the ultimate trier-of-fact to address the merits of the claim, and are, therefore of assistance to all.

ORDER

95The Tribunal Orders that the Motion to Strike the Witness Statement is denied. The Tribunal orders that the alternative relief is allowed in part, namely:

a. The Tribunal Orders that the Testimony of the Niagara Escarpment Commission’s (“NEC”) Witness be limited to the introduction of relevant documents produced by the Parties in this action;

b. The Tribunal Orders that the Respondent produce to the Claimant any and all correspondence, instructions, and other documents provided to or received from the NEC in relation to this matter by Wednesday, March 8, 2023; and,

c. The Tribunal Orders that the NEC Witness’ testimony be limited to factual testimony alone.

96The Tribunal further Orders that the Motion to Withdraw Deemed Admissions is allowed. The Tribunal directs the Parties to work together to generate a new agreed-upon Statement of Facts that forms part of the record.

97The Tribunal further Orders that the Motion for Costs Thrown Away is allowed in part. The Tribunal fixes the amount of costs payable by the Respondent to the Claimant, in the amount of $5,500, exclusive of HST, to be paid within three months of the issuance of this Order, and thereafter is subject to interest calculated in accordance with section 129 of the Courts of Justice Act.

98The Tribunal further Orders that no costs of these motions are payable to either Party.

99The Panel Members are not seized but may be contacted through the Case Coordinator should procedural issues arise.

“Bita M. Rajaee”

BITA M. RAJAEE MEMBER

“C. Hardy”

C. HARDY 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.