Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: January 18, 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. HMK in right of Ontario (Minister of Transportation)
Heard: December 8, 2022, by Video Hearing
APPEARANCES:
Parties
Counsel/Representative
12908 Highway 7 Inc. (“Claimant”)
Shane Rayman Sarah Spitz Conner Harris (In Absentia)
His Majesty the King in Right of the Province of Ontario, as represented by the Ministry of Transportation (“Respondent”)
Eunice Machado Brandon Fragomeni
Memorandum of oral DECISION DELIVERED BY ROBERT G. ACKERMAN AND BITA M. rAJAeE on decemer 8, 2022 AND ORDER OF THE TRIBUNAL
1This Arbitration concerns a claim brought under subsection 26(b) of the Expropriations Act by 12908 Highway 7 Inc., (“Claimant”) against His Majesty the King as represented by the Ministry of Transportation (“Respondent”) for compensation arising out of the closure during the construction of highway improvement works of one of two accesses to the property known municipally as 12908 Highway 7 in the Town of Halton Hills (“Subject Property”).
2A five-day hearing of this Arbitration was scheduled to begin on December 5, 2022 (“Original Hearing Date”). However, on November 30, 2022, the Respondent requested an adjournment of the Hearing on an urgent basis as its main witness had been unexpectedly hospitalized and would be unable to testify at the Hearing. The Claimant consented to the adjournment. The Tribunal granted the adjournment.
3The Claimant had served and filed on November 29, 2022, a Motion Record, inclusive of a Notice of Motion and supporting Affidavit, to be heard as a preliminary matter on the first day of the Original Hearing Date. This motion requested an order striking the Respondent’s Witness Statement of an unknown witness from the Niagara Escarpment Commission or in the alternative limiting the testimony of such a witness, an order requiring the Respondent to make further documentary production pertaining to the Niagara Escarpment Commission, and for the costs of the Motion (“Claimant’s Motion to Strike”). The Parties had agreed as a term of the consent adjournment, that the date of December 8, 2022, was to be maintained for this Motion to be potentially spoken to, as well as to address procedural matters arising from the adjournment of the Original Hearing Date.
4On December 7, 2022, the Claimant submitted a Factum and Book of Authorities in relation to the Claimant’s Motion to Strike. In addition to the request for an order striking the Witness Statement, the Factum contained a request that payment of the Claimant’s costs thrown away as a result of the adjournment be ordered (“Claimant’s Cost Request”). The Notice of Motion for the Claimant’s Motion to Strike did not seek an order for costs thrown away as it had preceded the request for an adjournment and an amended Notice of Motion seeking such costs had not been subsequently filed. A Costs Outline or Bill of Costs was not filed.
5Also on December 7, 2022, the Respondent served and filed a Notice of Motion returnable on a date to be scheduled, requesting that it be permitted to withdraw deemed admissions, that the Respondent’s Response to the Claimant’s Request to Admit be accepted and entered, and for costs (“Respondent’s Motion”). At the time of filing this motion, the Respondent requested that the Tribunal hear the Claimant’s Motion to Strike and the Claimant’s Costs Request on the same date as the Respondent’s Motion, rather than on December 8, 2022.
6On December 8, 2022, the Tribunal first addressed the request by the Respondent to hear the two Motions on the same date. The Respondent indicated that a date would need to be scheduled with respect to the Respondent’s Motion. Additionally, the Respondent indicated that the Claimant’s Motion to Strike was required only due to the impending Original Hearing Date. As a result of the adjournment, the Respondent could now rectify the Claimant’s concerns with respect to the witness from the Niagara Escarpment Commission, including providing a more fulsome Witness Statement, which would, among other things, identify the person who would be testifying on behalf of the Niagara Escarpment Commission.
7The Claimant consented to scheduling the Claimant’s Motion to Strike to be heard on the same date as the Respondent’s Motion, but requested an order be made for the payment of its costs thrown away as a result of the adjournment. After considering submissions from both Parties, the Tribunal directed that the Claimant’s Costs Request be made by way of a Motion (“Claimant’s Costs Motion”) to be returnable on the same date as the Claimant’s Motion to Strike and the Respondent’s Motion, as this would allow for more fulsome materials to be filed by all Parties, which would assist the Tribunal in making a fair and judicious finding.
MOTION DATE
8As such, a one (1) day video hearing on the date of Wednesday, February 22, 2023 at 10 a.m., has been selected for the Claimant’s Motion to Strike, the Claimant’s Costs Motion, and the Respondent’s Motion. No further notice will be given.
9With respect to these Motions, the Parties agreed to the following timelines:
a) that all Moving Party Motion materials will be served and filed by December 16, 2022;
b) that all Responding Party Motion materials will be served and filed by December 30, 2022;
c) that any cross-examinations on the Affidavits filed in support of the Motions be completed by January 13, 2023;
d) that Moving Party Facta and Briefs of Authorities be served and filed by February 7, 2023; and
e) that Responding Party Facta and Briefs of Authorities be served and filed by February 14, 2023.
10Parties 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 Meeting: https://global.gotomeeting.com/join/638422541
Access Code: 638-422-541
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) 497-9373 or Toll free 1-888-299-1889. Access Code is 638-422-541.
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.
HEARING DATE
14As the Original Hearing Date was adjourned, a new hearing date was selected for this five (5) day Hearing. Accordingly, a video hearing will commence on Monday, March 27, 2023, at 10 a.m. and end on or before Friday, March 31, 2023.
15Parties 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 Meeting: https://global.gotomeeting.com/join/765631861
Access code: 765-631-861
16Persons 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) 497-9391or Toll free 1-888-455-1389. Access Code is 765-631-861
17Individuals 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.
OTHER MATTERS
18The Tribunal inquired as to whether there were any other matters to be addressed, which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.
ORDER
19The Tribunal Orders that:
a. A Motion date has been set aside to take place on Wednesday, February 22, 2023, at 10 a.m. by video hearing, wherein the Tribunal will consider the Claimant’s Motion to Strike, the Claimant’s Costs Motion, and the Respondent’s Motion.
b. The video hearing of the merits in this matter will commence on Monday, March 27, 2023, at 10 a.m., and five (5) days have been set aside.
c. There will be no further notice.
20The Panel Members are not seized but may be contacted through the Case Coordinator should procedural issues arise.
“Robert G. Ackerman”
ROBERT G. ACKERMAN
MEMBER
“Bita M. Rajaee”
BITA M. RAJAEE
MEMBER
Ontario Land Tribunal
Website: www.olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.