1289777 Ontario Limited v. Metrolinx, 2023 CanLII 28243

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

April 06, 2023

CASE NO(S).:

OLT-22-002477

OLT-22-002479

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant:

1289777 Ontario Limited

Respondent:

Metrolinx

Subject:

Land Compensation

Property Address/Description:

1Jefferson Ave.

Municipality:

City of Toronto

OLT Case No.:

OLT-22-002477

OLT Lead Case No.:

OLT-22-002477

OLT Case Name:

1289777 Ontario Limited v. Metrolinx

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant:

1289777 Ontario Limited

Respondent:

Metrolinx

Subject:

Land Compensation

Property Address/Description:

1A Atlantic Ave.

Municipality:

City of Toronto

OLT Case No.:

OLT-22-002479

OLT Lead Case No.:

OLT-22-002479

OLT Case Name:

1289777 Ontario Limited v. Metrolinx

Heard:

February 6, 2023 by Video Hearing

APPEARANCES:

Parties

Counsel

1289777 Ontario Limited

Philip Sanford

Michael Foderick

Metrolinx

Aisling Flarity

Ian Mathany

decision DELIVERED BY DAVID L. LANTHIER AND ORDER OF THE TRIBUNAL

BACKGROUND

1These two Claims under the Expropriations Act, made by the same Claimant, were addressed together at this Case Management Conference (“CMC”).

2The Claim in Tribunal Case File No. OLT-22-002477 relates to the Claim for market value of the lands expropriated by Metrolinx and located at 1 Jefferson Avenue, in the Liberty Village area, in the City of Toronto.

3The Claim in Tribunal Case File No. OLT-22-002479 relates to the Claim for market value of the lands also expropriated by Metrolinx and located at 1A Atlantic Avenue, in the Liberty Village, area in the City of Toronto.

4The pleadings confirm that both properties are adjacent to the Exhibition GO Station and the Metrolinx rail corridor and are located across Atlantic Avenue from each other. Atlantic Avenue, as it fronts both properties, terminates at the Metrolinx rail corridor. Both properties are utilized as surface parking lots.

CONSOLIDATION

5The Claimant and Metrolinx are in agreement that due to the nature of the issues raised in the pleadings, it would be appropriate to have these two proceedings determined together by the Tribunal. The Tribunal recognizes that the Parties are obviously the same, the issues arising from the expropriation are interwoven, an overlap of evidence and witnesses is likely, and it will be both cost effective and efficient to have both proceedings scheduled together for a hearing on the merits, and also avoid a possibility of inconsistent findings.

6The Panel Member has raised with the Parties the question of whether the consolidation and common hearing of the two proceedings should occur as a true consolidation under Rule 16.2 of the Tribunal’s Rules of Practice and Procedure (“Rules”), where the evidence in each of the two proceedings is evidence in one consolidated proceeding, or alternatively, the two matters are heard together but not formally consolidated such that the evidence in the hearing is evidence in each proceeding to which it could apply.

7The Parties have not reached a consensus on this and have considered one hearing proceeding first, with the other to follow, with common evidence, or possibly undertaking one hearing. In the course of the discovery process and exchange of documents and expert reports, and the refinement of the issues, it is anticipated that the Parties will have a better understanding as to how to best structure the organization of the hearing and the presentation of the evidence. It is essentially too early to determine the framework for the hearing that should be proposed to the Tribunal.

8Accordingly, the Tribunal will direct that the two proceedings be administratively consolidated and continue to be case managed together in accordance with the two Procedural Orders. The Tribunal will also direct that the two proceedings will be heard together, or one after the other. However, the determination of the exact form and manner in which the two proceedings are to be consolidated or heard together, either under Rule 16.2 or 26.3 of the Tribunal’s Rules, and such procedural directions as will be required for the hearing, will be deferred to be dealt with at the next CMC upon submissions by counsel, and subject to Rule 16.4 of the Tribunal’s Rules.

PROCEDURAL ORDERS, FURTHER CMC AND HEARING DATES

9The Tribunal was provided with two draft Procedural Orders for the two Claims prior to the CMC. Each of the two Procedural Orders anticipated that the two hearings would occur within one three-week hearing period. The Tribunal confirmed with the Parties that the hearing of both proceedings could be accommodated within 14 hearing days, rather than 15, which allowed for greater flexibility in scheduling. The Tribunal heard submissions as to timing, with the Claimant requesting an earlier hearing, possibly some time in September of 2023, and Metrolinx proposing a deferral of the hearing for over a year to March of 2024.

10The Tribunal was not persuaded that there was any justifiable basis to delay the hearing as requested by Metrolinx but scheduling also necessitated accommodating counsel availability and witnesses. The proposed date in September 2023 was not available. To assist in scheduling the Parties were, following the CMC, provided with multiple blocks of time available on the calendar with direction to counsel to confer and advise the Tribunal as to the earliest dates possible for the Parties. Following receipt of communication from counsel, the hearing has accordingly been scheduled as provided for herein.

11The Parties were to revise the drafts of the Procedural Orders and submit them to the Tribunal on the basis of the hearing dates selected.

12Appended to this Decision as Schedule 1 is the Procedural Order, which will now govern all further pre-hearing procedural requirements and the hearing of the proceeding in Tribunal Case File No. OLT-22-002477.

13Appended to this Decision as Schedule 2 is the Procedural Order, which will now govern all further pre-hearing procedural requirements and the hearing of the proceeding in Tribunal Case File No. OLT-22-002479.

14The fixed dates for the hearing on the merits are now provided in the Procedural Orders appended to this Decision and the coordinates for the hearings are set out below in this Decision.

15For the purposes of the additional pre-hearing CMC on Thursday, November 23, 2023, the Parties are to jointly provide a written status report to the Tribunal on or before Friday, November 17, 2023, which will include:

(a) The joint position, or alternatively, the respective position, of the Parties as to the proposed form of consolidation or hearing of the proceedings together pursuant to Rule 16 of the Tribunal’s Rules;

(b) The joint position, or alternatively, the respective positions of the Parties, as to the proposed hearing plan including: (a) the manner in which the evidence will be considered by the Tribunal for each of the two proceedings; (b) the anticipated order and schedule of witnesses; (c) the estimated time frames for the evidence-in-chief, cross and re-examination for all scheduled witnesses, as well as the time allotted for opening and closing submissions and (d) any anticipated preliminary motions or matters.

(c) A consideration of whether the total number of days required for the hearing, supported by a preliminary outline of the number of days allocated for the hearing, can be reduced and hearing dates released from the Tribunal’s calendar.

(d) If any other matters of case management and the hearing are to be addressed, they should be identified in the status report.

TELEPHONE CONFERENCE CALL AND VIDEO HEARING COORDINATES

Further CMC – November 23, 2023

16The CMC to address those matters raised in the status report filed pursuant to paragraph 15 above, will commence at 9 a.m. on Thursday, November 23, 2023, with the following dial-in instructions:

Individual(s) are directed to call 416-212-8012 or Toll Free 1-866-633-0848. When prompted, enter the code 4779874# to be connected to the call.

Hearing of the Merits of Both Proceedings – January 22 to February 9, 2024

17For the fourteen-day video hearing, commencing at 10 a.m. on Monday, January 22, 2024, and continuing to Friday, February 9, 2024 (standing down on January 29, 2024) the Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

Monday, January 22, 2024 to Friday, February 9, 2024 (14 day hearing)

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

Access Code: 914-098-901

Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: as indicated above

Directives for Video Hearings

18All Parties, witnesses or observers are asked to access and set up the application well in advance of each of the events 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 either of the video hearing events using 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. The access codes are as indicated above.

20Individuals are directed to connect to each of the events on the assigned dates at the correct time. It is the responsibility of the persons participating in the hearings to ensure that they are properly connected to the event at the correct time and test their audio and video connections. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

21There will be no further notice with respect to each of the two hearing events, and the Panel Member is not seized on any of the hearings.

SETTLEMENT AND MEDIATION

22There have been ongoing discussions with respect to the proceedings which will undoubtedly continue. Future requests for Tribunal-led mediation may be submitted upon the agreement of the Parties.

DIRECTIVES AND ORDERS

23The Tribunal so orders and provides these Case Management Conference directives for the purposes of the case management of this proceeding.

“David L. Lanthier”

DAVID L. LANTHIER

VICE-CHAIR

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 1

CASE NO.: OLT-22-002477

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Claimant:

1289777 Ontario Limited

Respondent:

Metrolinx

Subject:

Land Compensation

Property Address/Description:

1 Jefferson Ave.

Municipality:

City of Toronto

OLT Case No.:

OLT-22-002477

OLT Lead Case No.:

OLT-22-002477

OLT Case Name:

1289777 Ontario Limited v. Metrolinx

PROCEDURAL ORDER

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

Organization of the Hearing

2. The hearing will begin on January 22, 2024 at 10:00 a.m. at:

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

Access Code: 914-098-901

Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: as indicated above

3. The parties’ initial estimation for the length of the hearing is fourteen (14) days (Tribunal will not sit on January 29, 2024). The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. 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.

6. 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.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. 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

9. The Claimant served and filed a Notice of Arbitration and Statement of Claim on March 9, 2022.

10. The Respondent, Metrolinx, served and filed its Reply on March 30, 2022.

11. The parties shall exchange their respective Affidavits of Documents and Productions by May 31, 2023.

12. Examinations for Discovery of the representative of each party shall be completed on or before June 26, 2023.

13. Each party shall answer their respective undertakings arising from examinations for discovery on or before August 25, 2023.

14. Any motions arising from either documentary discovery or the Examination for Discovery and answers to undertakings, if necessary, shall be heard on September 27, 2023 at 10:00 am and will be held by way of videoconference or at a mutually convenient location at the direction of the Tribunal. In the event that the parties do not require any such motion, they shall endeavour to notify the Tribunal, on consent, at least seven (7) days prior to the scheduled date for the motion or as soon as possible thereafter.

15. 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 discovery motion before the Tribunal.

16. 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 September 29, 2024 and in accordance with paragraph 30 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.

17. Expert witnesses in the same field shall have a meeting on or before December 1, 2023 and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before December 15, 2023.

18. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 20 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

19. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 20 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 20 below.

20. On or before October 27, 2023, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 30 below.

21. On or before October 27, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 30 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

22. On or before fifty-five (55) days prior to the start of the hearing the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

23. On or before seven (7) days prior to the start of the hearing, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 30 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

24. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before November 24, 2023 and in accordance with paragraph 30 below.

25. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator, in both electronic and hard copy, on or before the ten (10) days prior to the hearing.

26. 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.

27. 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.

28. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

29. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before thirty (30) days prior to the start of the hearing with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

30. 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.

31. 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 – PARTICIPANT LIST

Party

Party Status

Counsel / Representative

1289777 Ontario Limited

Claimant

MCCARTHY TÉTRAULT LLP TD Bank Tower 66 Wellington Street West, Suite 5300, Box 48 Toronto, Ontario, M5K 1E6

Phillip Sandford (LSO #17586I) Tel: 416.601.7680 Email: psanford@mccarthy.ca

Jonathan Nehmetallah (LSO #72676O) Tel: 416.601.8146 Email: jnehmetallah@mccarthy.ca

Metrolinx

Respondent

M&H LLP 61A Jarvis St., Suite 200 Toronto, ON M5C 2H2

Ian Mathany (LSO #57197U) Tel: 416.947.6702 Email: ian@mhlawyers.ca

Aisling Flarity (LSO #65500B) Tel: 416.947.6700 x 204 Email: aisling@mhlawyers.ca

ATTACHMENT 2 – ISSUES LIST

OLT File No.: OLT-22-002477

ONTARIO LAND TRIBUNALS

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:

1289777 ONTARIO LIMITED

Claimant

• and -

METROLINX

Respondent

ISSUES LIST

1. The issues shall be those as set out in the pleadings delivered by the Parties.

ATTACHMENT 3 – ORDER OF EVIDENCE

1. Claimant’s evidence in-chief
2. Claimant’s evidence in cross-examination
3. Respondent’s evidence in-chief
4. Respondent’s evidence in cross-examination

SCHEDULE 2

CASE NO.: OLT-22-002479

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

Claimant: 1289777 Ontario Limited

Respondent: Metrolinx

Subject: Land Compensation

Property Address/Description: 1A Atlantic Avenue

Municipality: City of Toronto

OLT Case No.: OLT-22-002479

OLT File No.: OLT-22-002479

OLT Case Name: 1289777 Ontario Limited v. Metrolinx

PROCEDURAL ORDER

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

Organization of the Hearing

2. The hearing will begin on January 22, 2024 at 10:00 a.m. at:

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

Access Code: 914-098-901

Audio-only telephone line: (Toll Free) 1-888-299-1889 or +1 (647) 497-9373 Audio-only access code: as indicated above

3. The parties’ initial estimation for the length of the hearing is fourteen (14) days (Tribunal will not sit on January 29, 2024). The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. 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.

6. 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.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. 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

9. The Claimant served and filed a Notice of Arbitration and Statement of Claim on March 9, 2022.

10. The Respondent, Metrolinx, served and filed its Reply on March 30, 2022.

11. The Claimant shall serve and file its Amended Statement of Claim on or before February 24, 2023.

12. The Respondent shall serve and file its Amended Reply on or before March 17, 2022

13. The parties shall exchange their respective Affidavits of Documents and Productions by May 31, 2023.

14. Examinations for Discovery of the representative of each party shall be completed on or before June 26, 2023.

15. Each party shall answer their respective undertakings arising from examinations for discovery on or before August 25, 2023.

16. Any motions arising from either documentary discovery or the Examination for Discovery and answers to undertakings, if necessary, shall be heard on September 27, 2023 at 10:00 am and will be held by way of videoconference or at a mutually convenient location at the direction of the Tribunal. In the event that the parties do not require any such motion, they shall endeavour to notify the Tribunal, on consent, at least seven (7) days prior to the scheduled date for the motion or as soon as possible thereafter.

17. 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 discovery motion before the Tribunal.

18. 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 September 29, 2023 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.

19. Expert witnesses in the same field shall have a meeting on or before December 1, 2023, and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before December 15, 2023.

20. 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.

21. 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 21 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 21 below.

22. On or before October 27, 2023, the parties shall provide copies of their [witness and] expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 31 below.

23. On or before October 27, 2023, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 31 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

24. On or before fifty-five (55) days prior to the start of the hearing the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

25. On or before seven (7) days prior to the start of the hearing, 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.

26. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before November 24, 2023 and in accordance with paragraph 31 below.

27. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator, in both electronic and hard copy, on or before the ten (10) days prior to the hearing.

28. 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.

29. 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.

30. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

31. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before 30 (30) days prior to the start of the hearing with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

32. 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.

33. 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 – PARTICIPANT LIST

Party

Party Status

Counsel / Representative

1289777 Ontario Limited

Claimant

MCCARTHY TÉTRAULT LLP TD Bank Tower 66 Wellington Street West, Suite 5300, Box 48 Toronto, Ontario, M5K 1E6

Phillip Sandford (LSO #17586I) Tel: 416.601.7680 Email: psanford@mccarthy.ca

Jonathan Nehmetallah (LSO #72676O) Tel: 416.601.8146 Email: jnehmetallah@mccarthy.ca

Metrolinx

Respondent

M&H LLP 61A Jarvis St., Suite 200 Toronto, ON M5C 2H2

Ian Mathany (LSO #57197U) Tel: 416.947.6702 Email: ian@mhlawyers.ca

Aisling Flarity (LSO #65500B) Tel: 416.947.6700 x 204 Email: aisling@mhlawyers.ca

ATTACHMENT 2 – ISSUES LIST

OLT File No.: OLT-22-002479

ONTARIO LAND TRIBUNALS

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:

1289777 ONTARIO LIMITED

Claimant

• and -

METROLINX

Respondent

ISSUES LIST

2. The issues shall be those as set out in the pleadings delivered by the Parties.

ATTACHMENT 3 – ORDER OF EVIDENCE

1. Claimant’s evidence in-chief
2. Claimant’s evidence in cross-examination
3. Respondent’s evidence in-chief
4. Respondent’s evidence in cross-examination