Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: March 29, 2023

CASE NO(S).: OLT-22-002357 (Formerly LC060020, LC060021)

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

Claimant: Ilana Gemeiner and Judith Gemeiner Respondent: City of Toronto Subject: Land Compensation Property Address/ Description: 35-49 Bales Ave Blk A Plan 2090 Municipality: City of Toronto OLT Case No.: OLT-22-002357 Legacy Case No.: LC060020 OLT Lead Case No.: OLT-22-002357 Legacy Lead File No.: LC060021 OLT File No.: OLT-22-002357 Legacy File No.: LC060021 OLT Case Name: Gemeiner v. Toronto (City)

Heard: March 16, 2023 by Video Hearing ("VH")

APPEARANCES:

Parties	Counsel
City of Toronto and Toronto Transit Commission ("City")	M. Longo
Ilana Gemeiner, Judith Gemeiner, Y. Erez Architect Inc. and 1314193 Ontario Limited	J. Beitchman

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLLIAM R. MIDDLETON AND W. DANIEL BEST ON MARCH 16, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference ("CMC") in this matter following the Tribunal’s Decision dated December 9, 2022 ("Prior Decision") denying the City’s motion to dismiss the Claimants’ Notice of Arbitration filed before the Tribunal’s predecessor, the Ontario Municipal Board, on March 9, 2006 ("Claim"). The Claim seeks compensation under subsection 26(b) of the Expropriations Act, R.S.O. 1990, c. E.26 ("EA") arising out of the expropriation by the City in 1997 ("Expropriation") of the Plaintiff’s leasehold interest in relation to the property municipally known as 35-49 Bales Avenue Block A Plan 2090 in the City ("Property").

2In the Prior Decision, the Parties were ordered to produce a draft Procedural Order ("PO") to govern the future conduct of this action. They did so prior to the CMC held by VH on March 16, 2023. However, very little else appears to have happened beyond some additional document production in the more than three (3) months that have transpired since the Prior Decision.

3The Tribunal noted that the Claim does not appear to present a complex case for adjudication and urged the Parties’ counsel to move more quickly toward either a resolution or a merits hearing in light of the fact that the Claim was issued more than 15 years ago in relation to the Expropriation that occurred approximately 25 years ago. The draft PO does not set an expeditious schedule, since it proposes that the Ontario Land Tribunal ("OLT") would not even set a hearing date until after a Notice of Readiness is delivered more than one year from the CMC date, being on March 31, 2024. The Tribunal remarked that if this was agreed to, then it is possible that a hearing might not be scheduled until 2025.

4The Tribunal reminded the Parties’ counsel that it has broad powers under sections 8, 9 and 12(2) of the Ontario Land Tribunal Act, S.O. 2021, c. 4 Sched 6 to provide direction, set dates for steps to be taken and to establish hearing dates and schedule mediation in expropriations matters. These powers do not conflict with any provisions of the Expropriation Act, R.S.O. 1990, c. E.26 – in fact, they are specifically contemplated in section 26(1) and section 29 of that Planning Act:

26 (1) If the statutory authority and the owner do not agree on the compensation payable under this Act, the statutory authority or the owner may, subject to subsection (2), apply to the Tribunal for the determination of compensation by way of a hearing or as otherwise provided for under the Ontario Land Tribunal Act, 2021. 2021, c. 4, Sched. 6, s. 48 (6).

29 The Tribunal shall determine any compensation in respect of which an application is made under section 26 and, in the absence of an agreement made under section 24, shall determine any other matter required by this or any other Act to be determined by the Tribunal. 2021, c. 4, Sched. 6, s. 48 (7).

5Of course, the OLT Rules of Practice and Procedure ("Rules") also govern expropriations proceedings and are not limited solely to Rule 26 which specifically pertains to expropriation matters. Rule 26.17 states:

26.17 Case Management Conference A party may request and the Tribunal may direct the parties to attend a case management conference, and the Rules governing such conferences apply.

6The Tribunal’s case management provisions are set out in Rule 19 and provide broad powers for the Tribunal to provide directions to the Parties concerning the proceeding - and to set a hearing date. While it may be that in past expropriation cases, the Tribunal has utilized ‘a light touch’ on case management, this particular case certainly justifies a more proactive approach. Moreover, there is no compelling reason why the Tribunal ought to permit the Parties to any expropriation proceedings more latitude to ‘self manage’ than the Parties in any other OLT matter. Indeed, some planning cases are far more complex and present many more issues for adjudication than do many expropriation actions.

7On the other hand, there are obvious differences pertaining to expropriation proceedings, among them the conduct of examinations for discovery of Party representatives and the often-inevitable motion practice to resolve discovery disputes. Nonetheless, there is no reason to inordinately delay the progress of an expropriation case or to defer the setting of a reasonable hearing date when it is clear that the Parties know or ought to know what issues will ultimately need to be resolved or adjudicated. In the event that particular circumstances dictate the provision of longer periods of time to, for example, finalize discoveries and expert reports or hold mediation sessions, a CMC can easily tailor the PO accordingly.

8In the Tribunal’s view, it would be unreasonable to delay for another full year the mere setting of a merits hearing date. On the other hand, it is less preferable for the Tribunal to unilaterally impose a hearing date on the Parties. Thankfully, counsel for both Parties here (perhaps a little reluctantly) agreed that it was reasonable for the Tribunal to schedule a hearing date before the end of 2024.

9Counsel for both Parties agreed that a merits hearing will likely require three (3) weeks and that it would be reasonable for the hearing to take place in the Fall of 2024. Therefore, the Tribunal has scheduled the hearing to commence on Monday, September 16, 2024 for three (3) weeks ending Friday, October 4, 2024.

10Parties and participants 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:

https://global.gotomeeting.com/join/927921077

Access code: 927-921-077

11Parties 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

12Persons 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: +1 (647) 497-9391 or Toll Free 1-888-299-1889. The access code is 927-921-077.

13Individuals 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.

14As for the draft PO, the Tribunal urged counsel for the Parties to revisit their timelines in light of the now-scheduled hearing date and to, wherever possible, shorten the timelines for the identified steps. In particular, the Tribunal suggested that discoveries could be held sooner than proposed given that affidavits of documents have been exchanged months ago. In addition, the long period before the end of discoveries and any required motion practice could also be shortened. Upon proper filing of motion materials in accordance with Rule 10, the Tribunal will schedule a motion hearing event accordingly – in fact, the Tribunal noted that discovery motions are more easily dealt with efficiently and expeditiously in writing pursuant to Rule 10.3. Rare would be the situation where elegant oratory in a motion hearing is required to enable the Tribunal to render a decision on a discovery dispute motion.

15The Tribunal also suggested that the Parties consider providing for a mediation date in their revised PO and reminded them that the OLT has a well-developed mediation facility to assist them to resolve some or all of the matters in dispute. As for the form of the PO, the Tribunal encouraged the Parties to consider employing the usual OLT template, modifying it to suit this case. For example, given that the pleadings already identify the issues for determination, there is no need to replicate them in the Issues List as they can simply be incorporated by reference.

16Finally, the Tribunal will continue to provide case management assistance to the Parties and to that end has scheduled a second CMC. At that time, upon proper prior filing of materials, motions may also be brought and the Parties may discuss with the Tribunal any other issues that have arisen with respect to the PO. The second CMC has been scheduled to take place on Wednesday, January 30, 2024 at 10 a.m.

17Parties 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:

https://global.gotomeeting.com/join/687587165

Access code: 687-587-165

18Parties and participants 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

19Persons 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: +1 (647) 497-9391 or Toll Free 1-888-299-1889. The access code is 687-587-165.

20Individuals 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.

21Subsequent to the CMC, the Tribunal received a further draft PO from the Parties and has revised it for issuance pursuant to the Orders made below in paragraph [22].

ORDER

22THE TRIBUNAL ORDERS that the Procedural Order appended as Attachment 1 hereto shall govern the conduct of this proceeding.

23The Vice-Chair and Member will remain available to assist with the ongoing case management of this matter, subject to the Tribunal’s scheduling requirements.

"William R. Middleton"

WILLIAM R. MIDDLETON VICE-CHAIR

"W. Daniel Best"

W. DANIEL BEST 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.

Ontario Land Tribunals 655 Bay Street, Suite 1500 Toronto ON M5G 1E5 Telephone: (416) 212-6349 Toll free: 1-866-448-2248 Website: olt.gov.on.ca

Tribunaux de l’aménagement du territoire Ontario 655 rue Bay, bureau 1500 Toronto ON M5G 1E5 Téléphone: (416) 212-6349 Sans Frais: 1-866-448-2248 Site Web : olt.gov.on.ca

ATTACHMENT A

ONTARIO LAND TRIBUNAL

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

Claimant: Ilana Gemeiner, Judith Gemeiner, Y. Erez Architect Inc. and 1314193 Ontario Limited Respondent: City of Toronto Subject: Land Compensation Property Address/ Description: 35-49 Bales Ave Blk A Plan 2090 Municipality: City of Toronto OLT Case No.: OLT-22-002357 Legacy Case No.: LC060020 OLT Lead Case No.: OLT-22-002357 Legacy Lead File No.: LC060021 OLT File No.: OLT-22-002357 Legacy File No.: LC060021 OLT Case Name: Gemeiner v. Toronto (City)

PROCEDURAL ORDER

1. The Tribunal may vary or add to the directions in this procedural order at any time by an oral ruling or by another written order, either on the parties’ request, its own motion or by a further Procedural Order.

2. Any date or deadline contemplated in this Procedural Order may be amended by agreement of the parties, on consent of the Tribunal.

Organization of the Hearing

3. The video hearing will begin on September 16, 2024 at 10 a.m.

4. The length of the hearing will be 15 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 procedural order deadlines are generally found in Attachment 1.

5. The issues are set out in the pleadings filed with the Tribunal.

6. The order of evidence shall be as set out in Attachment 2 to this Order. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person 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

Discovery

8. As of the date of this Order, the parties have exchanged their respective Affidavits of Documents and copies of the productions referenced therein, and/or any supplementary or amended Affidavits of Documents.

9. Examinations for discovery of the representative of each party shall be completed on or before August 18, 2023.

10. Each party shall answer their respective undertakings arising from examinations for discovery on or before November 30, 2023.

Motions

11. If any party is of the view that a motion arising from either documentary discovery or the Examinations for Discovery (and any answers to undertakings or refusals arising therefrom) is necessary, they shall commence a motion in writing in accordance with Rule 10.3 of the Rules of Practice and Procedure of the Ontario Land Tribunal ("Rules"). If the Tribunal believes that an oral hearing is required, it will schedule same upon notice to the Parties.

12. 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 30 days of the Tribunal’s decision arising from any discovery motion.

13. Notwithstanding sections 11 and 12 above, the Parties may, upon complying with the provisions of Rule 10 of the Rules, bring any required motion at the Case Management Conference already scheduled to take place on Wednesday, January 30, 2024.

Evidence

"Expert report" means a report prepared by an expert witness, consisting of an outline of his or her qualifications, an outline of the issues he or she will address in oral evidence, a description of his or her opinion on those issues, and a list of reports, documents and/or studies that the expert witness relies upon.

"Witness statement" means a document consisting of a short outline of the facts and issues that a non-expert witness will address in evidence. A witness statement must be served for all non-expert witnesses a party intends to call at the hearing.

14. 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 December 8, 2023. 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.

15. The parties shall serve all expert reports and witness statements on each other on or before January 22, 2024.

16. The parties shall serve all reply expert reports and witness statements on each other on or before February 22, 2024.

17. Further witness statements and expert reports may be served and filed only with leave of the Tribunal and where granted, shall be served and filed at least 5 calendar days before the date on which the witness who will give oral evidence is to be called.

18. Unless the Tribunal orders otherwise, no expert shall give oral evidence and no witness shall testify at the hearing without first having served and filed an expert report or witness statement.

19. A party who serves and files a witness statement or expert report must have the witness present at the hearing to testify unless the party advises the Tribunal and the parties served with the witness statement or expert report that it is not to be considered part of the record. Notice of any such withdrawal is to be provided to all parties, and the Tribunal, no less than 7 days prior to the anticipated testimony of the witness.

20. On or before August 12, 2024, the parties shall provide copies of their visual evidence to all of the other parties. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

21. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before August 28, 2024.

Requests to Admit

22. Any party choosing to serve a Request to Admit facts or documents pursuant to Rule 51 of the Rules of Civil Procedure, incorporated by reference in Tribunal Rule 1.04, shall serve such Request or Requests on the party or parties opposite on or before 90 days in advance of the Hearing Date.

23. Responses to any Request(s) to Admit shall be served in accordance with the Rules of Civil Procedure.

Notice of Readiness for Hearing

24. The parties shall complete all pre-hearing steps contemplated by this Procedural Order and file a Notice of Readiness for Hearing with the Tribunal, by no later than March 31, 2024.

Mediation

25. Following submission of the Notice of Readiness, either party may request the Tribunal to schedule a further pre-hearing conference or a mediation in advance of the hearing of this matter in order to settle or narrow the issues in dispute.

General

26. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before September 9, 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.

27. All filings shall be submitted electronically. 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.

28. 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:

Date:

TRIBUNAL REGISTRAR

Attachment 1

Summary of Dates

DATE	EVENT
August 18, 2023	Examinations for discovery shall be completed
November 30, 2023	Answers to undertakings to be provided
December 8, 2023	Exchange witness lists
January 22, 2024	Exchange of Expert Reports and Witness Statements
January 30, 2024 10:00 am	Case Management Conference
February 22, 2024	Exchange of response to Expert Reports and Witness Statements (if any)
March 31, 2024	Parties to provide Notice of Readiness to Tribunal
August 12, 2024	Exchange of visual evidence (if any)
August 28, 2024	Finalize Joint Document Book
September 9, 2024	Hearing Plan filed with the Tribunal
September 16, 2024	Hearing commences

Attachment 2

Order of Evidence

The order of presentation of evidence shall be:

(i) case for the Claimant; (ii) case for the Respondent; and (iii) reply by the Claimant (if necessary).

Reply evidence shall not include evidence that was or should have been led in-chief.