Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE:
April 6, 2023
CASE NO(S).:
OLT-22-004477
PROCEEDING COMMENCED UNDER section 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27.
Claimant:
Dianne Bevins White and Mark White
Expropriating Authority:
Ministry of Transportation
Subject:
Determination of compensation
Property Address:
19037 The Gore Road
Municipality/UT:
Caledon/Peel
OLT Case No:
OLT-22-004477
OLT Lead Case No:
OLT-22-004477
OLT Case Name:
White v. Ministry of Transportation (Ontario)
Heard:
February 7, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Dianne Bevins White and Mark White (“Claimants”)
Leah Cummings
Ministry of Transportation
Robert B. Lawson
MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER ON FEBRUARY 7, 2023 AND ORDER OF THE TRIBUNAL
1This Decision addresses the Case Management Conference (“CMC”) conducted by the Tribunal in relation to the Claim brought by the Claimants under the Expropriations Act for compensation and damages arising from the expropriation of a portion of lands owned by the Claimants in the Town of Caledon.
2Prior to the CMC, the Tribunal was advised by the Town of Caledon that it has withdrawn from any involvement in the proceeding and Mr. Rubin attended to confirm this at the CMC.
MEDIATION/SETTLEMENT
3The parties are in agreement that Tribunal-led mediation may be of assistance to the parties once the discovery processes have been completed and all expert reports have been exchanged. As indicated, the parties will make the necessary request to the Tribunal for mediation assessment in or about the month of September. The parties will also advise the Tribunal in a timely manner if a settlement is reached.
PROCEDURAL ORDER, FURTHER CMC AND HEARING DATES
4The Tribunal was provided with a fairly complete draft of a Procedural Order prior to the CMC which anticipated a five-day hearing being scheduled in January of 2024. Upon that information, the Panel Member confirmed that the hearing could be scheduled from January 22 to January 26, 2024.
5The Panel Member addressed two minor concerns with respect to the Procedural Order which were resolved. They were:
(a) Paragraph 13 - Rather than scheduling a motions date to resolve any disputes arising from the discovery process, that might not be needed, the Tribunal directed, and it was confirmed, that the parties would instead advise the Tribunal on or before May 8, 2023 as to whether a Motions date was required. Barring unforeseen circumstances, if needed, the Tribunal will accommodate the pre-hearing timetable and schedule a one-day hearing of a motion between June 5 and June 16, 2023;
(b) The Tribunal also was of the view that paragraph 29 was inappropriate as it provided for mediation assessment to be conducted at a future CMC. As the mediation stream of the Tribunal is independent of the adjudicative processes, and mediation assessment is conducted independently from the Tribunal’s case management of its proceedings, the parties were directed to instead provide for a deadline as between themselves to submit a request for mediation to the Tribunal in or about the month of September, once the experts reports have been exchanged. A CMC will additionally be scheduled to address any final pre-hearing matters, which is provided for below in this Decision.
6The parties were to revise the draft of the Procedural Order and submit it to the Tribunal on the basis of the hearing dates and the revisions addressed during the CMC.
7Appended to this Decision as Attachment 1 is the Procedural Order, which will now govern all further pre-hearing procedural requirements and the hearing of the proceeding.
8The fixed dates for the hearing on the merits are now provided in the Procedural Order appended to this Decision and the coordinates for the hearings are set out below in this Decision.
9For the purposes of the pre-hearing telephone conference call (“TCC”) Status Hearing on November 17, 2023, the parties are to jointly provide a brief written status report to the Tribunal on or before Monday, November 13, 2023, confirming the total number of days required for the hearing, supported by a preliminary outline of a hearing plan setting out the anticipated order and schedule of witnesses, 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 any anticipated preliminary motions or matters. If the number of days allocated for the hearing can be reduced, the Parties will advise the Tribunal accordingly so that hearing dates may be released from the Tribunal’s calendar. If any other matters of case management and the hearing are to be addressed, they should be identified in the status report.
TELEPHONE HEARING AND VIDEO HEARING COORDINATES
TCC Status Hearing – November 17, 2023
10The TCC Status Hearing to review the draft hearing plan, will commence at 9 a.m. on Friday, November 17, 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 – January 22 to January 26, 2024
11For the five-day video hearing, commencing at 10 a.m. on Monday, January 22, 2024, and continuing to Friday, January 26, 2024, the Parties are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:
GoTo Conference Link: https://global.gotomeeting.com/join/344779885
Audio-Only Line: 1-888-299-1889 (Toll Free) OR +1 (647) 497-9373
Access Code: 344-779-885
12For the video hearing, all Parties, witnesses or observers are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available: https://app.gotomeeting.com/home.html.
13Individuals 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. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.
14Persons 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 with the access code mentioned above.
15There 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.
16The Tribunal so orders and provides these CMC directives for the purposes of the case management of this proceeding.
“David L. Lanthier”
DAVID L. LANTHIER
VICE-CHAIR
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.
ATTACHMENT 1
OLT Case No. 22-004477
ONTARIO LAND TRIBUNAL
IN THE MATTER OF the Expropriations Act, R.S.O. 1990, c. E.26 and
IN THE MATTER OF an Arbitration
B E T W E E N:
DIANNE BEVINS WHITE and MARK WHITE
Claimants
- and -
HIS MAJESTY THE KING IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO
Respondent
PROCEDURAL ORDER
This is an Order of the Ontario Land Tribunal (“OLT”) which sets the Hearing schedule, the Pre-Hearing requirements, and provides directions for the organization of the Hearing.
The OLT orders that:
AMENDMENT OF THIS ORDER
- At the request of any person, or on its own motion, the OLT may amend, vary or supplement all or any part of this Order at any time, either by making a ruling orally or by a further Procedural Order.
ORGANIZATION OF THE HEARING
The video hearing will take place between January 22, 2024 and January 26, 2024 at 10:00 a.m. on each day. No further notice shall be required.
The length of the hearing is five (5) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible. The procedural order deadlines are generally found in Attachment 1.
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.
ISSUES
- The issues at the Hearing shall be those set out in the pleadings filed, including amendments.
REQUIREMENTS BEFORE THE HEARING
Pleadings
The Claimants served a Notice of Arbitration and Statement of Claim on or about September 13, 2022 and filed said on or about September 21, 2022.
The Respondent served and filed a Reply on October 28, 2022.
Any further amendments to the pleadings shall be made in accordance with the Rules of the OLT.
Documentary and Oral Discoveries
Each parties’ Affidavit of Documents shall be exchanged on or before February 6, 2023.
Examinations for Discovery shall be completed on or before March 17, 2023.
Answers to any undertakings provided and/or re-examinations arising out of the answers and/or undertakings shall be completed on or before May 5, 2023.
The parties will advise the Tribunal on or before May 8, 2023 if they will require a motion date for any motion(s) arising out of the discovery process. Said motion(s) shall be scheduled, for hearing together in the case multiple motions, for a full day to be held between June 5, 2023 and June 16, 2023 as set down by the Tribunal. Said motion shall take place at the offices of the Ontario Land Tribunal, 655 Bay Street, 16th Floor, Toronto, Ontario, or by videoconference, as the Tribunal may determine.
All motion materials for any motion(s) arising out of the discovery process shall be served and filed in accordance with the Tribunal’s Rules of Practice and Procedure. This includes that any notice of motion and supporting materials of the moving party be served and filed at least fifteen (15) days before the date of the motion and that any notice of response to motion and all supporting materials be served at least seven (7) days before the date of the motion.
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 one month of the date on which the Tribunal delivers its reasons on the motion described in paragraph 13.
List of Witnesses
- 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 ninety (90) days before the hearing.
Expert Reports and Witness Statements
The following definitions shall apply in this matter:
“Written Evidence” includes all written material, reports, studies, documents, letters and statements which a Party intends to present and rely on as evidence at the Hearing. These must have pages numbered consecutively throughout the entire document, even if there are tabs or dividers in the material.
“Expert Report” means a document 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 the expert witness’ opinions on those issues, and a list of reports or studies that the expert witness will rely on at the Hearing.
“Visual Evidence” includes photographs, maps, videos, models, and overlays which a Party intends to present as evidence at the Hearing.
“Witness Statement” is a short written outline of a lay witness’ background, experience and interest in the matter; a list of the issues which he or she will discuss and the witness’ opinions on those issues; and a list of reports that the witness will rely on at the Hearing.
An “Expert Witness Statement” should include his or her (1) name and address, (2) qualifications including curriculum vitae and area of expertise in which the witness is proposed to be qualified, (3) a list of the issues he or she will address, (4) the witness’ opinions on those issues and the complete reasons for the opinions and (5) a list of reports that the witness will rely on at the Hearing.
An Expert Report, Expert Witness Statement, or Witness Statement, as appropriate, shall be served in respect of all witnesses.
The parties shall serve all expert reports on each other on or before July 14, 2023.
The parties shall serve all reply expert reports and witness statements on each other on or before September 8, 2023.
Further written evidence, witness statements, and expert reports may be served and filed only with leave of the Tribunal and, where leave is granted pursuant to s 28(1) of the Expropriations Act, shall be served and filed at least five (5) calendar days before the date on which the expert witness who will give oral evidence is to be called.
Expert witnesses in the same field shall have a meeting on or before sixty (60) days before the Hearing to try to resolve or reduce the issues for the hearing. The experts must prepare and file a list of agreed facts and the remaining issues to be addressed at the Hearing with the OLT case co-ordinator on or before ten (10) days prior to the Hearing.
On or before ten (10) days prior to the Hearing, 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.
Unless the OLT orders otherwise, no expert shall give oral evidence at the Hearing without first having served and filed an Expert Report and/or Expert Witness Statement.
A Party who serves and files an Expert Report, Expert Witness Statement, and/or Witness Statement to the other Party must have the witness attend the Hearing to give oral evidence, unless the Party notifies the other Party and the OLT on or before ten (10) days prior to the Hearing that the Expert Report, Expert Witness Statement, and/or Witness Statement is not part of their record.
Pre-Hearing Conference and Mediation Assessment
On or by October 12, 2023 the parties shall discuss whether a request should be made for mediation of this matter. If the parties wish to proceed with mediation, a request for mediation shall be submitted to the Tribunal on or by October 13, 2023.
The Tribunal will conduct a pre-hearing conference on consent of the parties on Friday, November 17, 2023 at 9:00 a.m. with a view to resolving any outstanding issues related to the January 2024 hearing.
Request to Admit
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 forty (40) days in advance of the Hearing Date.
Responses to any Request(s) to Admit shall be served in accordance with the Rules of Civil Procedure.
Joint Document Book
- The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before ten (10) days prior to the Hearing.
Notice of Readiness for Hearing
- The parties shall file a Notice of Readiness for Hearing with the Tribunal on or before sixty (60) days in advance of the Hearing Date.
PRESENTATION OF EVIDENCE
- The order of presentation of evidence shall be:
a. case for the Claimants;
b. case for the Respondent; and
c. reply by the Claimants.
- Reply evidence shall not include evidence which was or should have been led in chief. The OLT 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 consent or by Order of the OLT.
GENERAL PROVISIONS
The parties shall prepare and file a hearing plan with the Tribunal on or before thirty (30) days prior to 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.
Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and submitted to the Tribunal and the other parties, pursuant to the directions provided by the OLT case co-ordinator, on or before 10:00 a.m. on the day of that cross-examination, but the password shall only be provided to the Tribunal and the other parties immediately prior to the document being introduced as evidence.
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 Tribunal’s Rule 7.
No adjournments or delays will be granted before or during the hearing except for serious hardship or illness. The Tribunal’s Rule 17 applies to such requests.
This Member is not seized.
So orders the Tribunal.
ATTACHMENT 1
Summary of Dates
DATE
EVENT
February 6, 2023
Exchange of Affidavit of Documents
March 17, 2023
Complete Examinations for Discovery
May 5, 2023
Deadline to provide answers to undertakings
May 8, 2023
Parties to inform the Tribunal whether a motion arising out of the discovery process is required
June 5-16, 2023
Motion arising out of discovery process (if required), to be scheduled
July 14, 2023
Exchange of Expert Reports
September 8, 2023
Exchange of Responding Expert Reports (if any) and Witness Statements
October 12, 2023
Parties to determine whether to request a mediation
October 13, 2023
Parties to request mediation
October 23, 2023
Exchange of Witness Lists
November 17, 2023
Pre-Hearing Case Management Conference
November 23, 2023
Experts meeting prior to this date
November 23, 2023
Notice of Readiness for Hearing filed with the Tribunal
December 13, 2023
Deadline to provide Request(s) to Admit
December 22, 2023
Hearing Plan filed with the Tribunal
January 12, 2024
Agreed Statement of Facts filed with the Tribunal
January 12, 2024
Exchange of visual evidence (if any)
January 12, 2024
Joint Document Book filed with the Tribunal
January 22 to 26, 2024
Hearing commences