Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 11, 2023

CASE NO(S).: OLT-22-004250 OLT-22-004620

PROCEEDING COMMENCED UNDER section 26(b) of the Expropriations Act, R.S.O. 1990, c. E.27.

Claimant: Oakville Developments (2010) Inc. Respondent: Metrolinx Subject: Expropriation / Land Compensation Description: Determination of compensation due to underpass being built at Lakeshore West GO. Reference Number: 08-15-22-2016 and 08-15-22-2017 Property Address: 550 Kerr Street Municipality/UT: Oakville/Halton OLT Case No: OLT-22-004250 OLT Lead Case No: OLT-22-004250 OLT Case Name: Oakville Developments (2010) Inc. v. Metrolinx

PROCEEDING COMMENCED UNDER section 26(b) of the Expropriations Act, R.S.O. 1990, c. E.27.

Claimant: Shoppers Realty Inc. Respondent: Metrolinx Subject: Expropriation / Land Compensation Description: Determination of compensation due to underpass being built at Lakeshore West GO. Reference Number: HR1779615 Property Address: 550 Kerr Street Municipality/UT: Oakville/Halton OLT Case No: OLT-22-004620 OLT Lead Case No: OLT-22-004250 OLT Case Name: Shoppers Realty Inc. v. Metrolinx

Heard: March 14, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Oakville Developments (2010) Inc. ("Oakville Developments")	Christopher Williams Ajay Gajaria
Shoppers Realty Inc. ("Shoppers")	Abbey Sinclair
Metrolinx	Ian Mathany

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER AND ASTRID CLOS ON MARCH 14, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION – CMC FOR TWO PROCEEDINGS

1This first Case Management Conference ("CMC") was scheduled for this date with respect to the proceeding before the Tribunal in Case File No. OLT 22-004250 brought by Oakville Developments under the Expropriations Act. The Claim relates to the expropriation by Metrolinx of a portion of the lands owned by Oakville Developments located at 550 Kerr Street in the Town of Oakville and includes damages for the market value of the expropriated land (both in fee simple and a temporary easement), injurious affection, disturbance damages and interest and costs.

2The pleadings filed by Oakville Developments also identified Shoppers as the tenant on the lands and recognizes that Shoppers has its own independent claims. To that end, the Tribunal also has before it the proceeding commenced by Shoppers under the Expropriations Act in File No. OLT 22-004620.

3Prior to the CMC the Tribunal received various communications from the Parties including notice from Shoppers that it wished to request a consolidation of the two proceedings. Upon receipt and review of the additional pleadings in OLT 22-004620, and based upon the communications received, since the Parties were common to the proceedings, it was deemed appropriate that the hearing event be conducted as a concurrent CMC for both proceedings.

CONSOLIDATION

4Metrolinx consents to the consolidation requested by Shoppers. Oakville Developments previously indicated that it took no position on the request to consolidation provided that the consolidation did not delay the scheduling of the hearing of its claim. As matters have unfolded in the CMC with respect to scheduling, Oakville Development has confirmed it is in agreement to the consolidation of the two proceedings.

5Recognizing the criteria for consideration in any request for consolidation, the Tribunal recognizes it will be both cost effective and efficient to have both proceedings scheduled together for a hearing on the merits and avoid a possibility of inconsistent findings.

6Based upon the consents provided and the proposed form of the hearing identified in the draft Procedural Order, the consolidation of the proceedings in OLT File Nos. 22-004250 and OLT 22-004620 is hereby directed and the hearing of the first phase of the proceedings will be conducted as a consolidated hearing of the two Claims pursuant to Rule 16.2 of the Tribunal's Rules of Practice and Procedure where both proceedings will be heard together and the evidence in each of the two proceedings will be evidence in one consolidated proceeding. This Order is subject to Rule 16.4 of the Tribunal's Rules.

SCHEDULING OF HEARING, PHASING, AND PROCEDURAL ORDER

7Prior to the CMC the Tribunal was provided with two draft Procedural Orders anticipating the consolidation: one from Metrolinx containing no dates, and the other from Oakville Developments populated with all dates relating to the filing and exchange of documentation and the discovery process, anticipating a hearing date of September 4, 2023.

8The Tribunal confirmed with the parties that a hearing of both proceedings of ten days or more could not be efficiently accommodated with a start date of September 4, 2023. The Tribunal heard submissions as to timing, with Oakville Developments and Shoppers requesting an early hearing date. Metrolinx's position is that the hearing should be delayed to allow for the prior determination of planning Appeals for zoning by-law amendment and official plan amendment applications in relation to the lands that are the subject of the expropriation.

9A CMC is scheduled in those Appeals (Tribunal Legacy Case File No. PL200333) in May 2023 but when a hearing might be scheduled is unknown, as is the outcome. Oakville Developments strenuously objects to any delay to await such a determination of these unrelated appeals, submitting that the determination of those appeals is unrelated to the issues relating to market value and highest and best use as of the expropriation date back in April 2021 which will be based upon the planning and appraisal evidence and the highest and best economic use to which a willing and informed buyer and seller would anticipate the lands would be put at that time.

10The Tribunal is not of the view that there is any justifiable basis to delay the hearing as requested by Metrolinx or that the outcome of the planning applications, which will have been decided well after the valuation date, is a practical imperative to the hearing of the issues to be decided on the merits in the first phase of the hearing of the Claims. The two claimants are entitled to have their claims heard without delay, and with the discrepancy between the s. 25 payments and the amounts claimed for market value, there is real prejudice if the claimants award for market value exceed the pre-payment under s. 25 by any moderate amount.

11To assist in scheduling the Panel secured information on potential scheduling before the CMC and the parties were provided with availability in January and February on the Tribunal's calendar. Counsel for Metrolinx is committed to another hearing before the Tribunal in January and after determining that it would be prudent to allow for 13 days for the consolidated hearing of the claims, dates were secured for February 2024 and communicated to the Parties immediately following the CMC.

12The Tribunal provided some direction with respect to amendments to the draft Procedural Order. This included the direction to provide a clear and specific identification of those portions of the claims, and those issues, identified in the pleadings that would be dealt with at the first phase of the hearing in February 2024. The Tribunal also provided directions as to the logistics of scheduling any required Motion to address discovery refusals or documents and some timing issues for filing requirements.

13To explain the matter of phasing the hearing of the Claims, the pleadings and the submissions of counsel now clarify that because Metrolinx has delayed the infrastructure work on the road widening and realignment and new underpass giving rise to the expropriation, and the commencement of the temporary easement required for those purposes, the parties are not yet able to know the precise nature or quantum of the claims for disturbance damages and injurious affection. Accordingly, a second phase of the hearing of those aspects of the two claims will be necessary at some future date. Case management directives will also be required upon the conclusion of the first phase of the hearing to allow for the proceedings to later be finally adjudicated.

14For these reasons, the parties were directed to revise the drafts of the Procedural Order, inclusive of a clear delineation of those matters to be adjudicated in the first phase and those to be deferred, and to submit the revised Procedural Order to the Tribunal on the basis of the hearing dates selected and these directions. The parties were directed to provide the revised draft of the Procedural Order on or before Tuesday, March 21, 2023.

15The Tribunal subsequently received and reviewed the revised Procedural Order received jointly from the parties.

16Appended 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 consolidated proceedings in Tribunal Case File Nos. OLT-22-004250 and 22-004620.

PARTICULARS OF SCHEDULING – FURTHER CMC AND HEARING DATES

17The fixed dates for the consolidated 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.

18For the purposes of the additional pre-hearing Status Report/Case Management Conference to be conducted by Telephone Conference Call ("TCC") on Friday, December 8, 2023, the parties are to jointly provide a written status report to the Tribunal on or before Friday, December 1, 2023, which will include: confirmation of the total number of days required for the hearing, supported by a preliminary outline of a workplan 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 at the TCC they should be identified in the status report.

Further Status Hearing/Case Management Conference – December 8, 2023

19The Status Hearing/Case Management Conference to address those matters raised in the status report filed pursuant to paragraph 18 above, will commence as a TCC at 9 a.m. on Friday, December 8, 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.

Consolidated First Phase Hearing – February 12 to February 29, 2024

20For the thirteen-day Video Hearing, commencing at 10 a.m. on Monday, February 12, 2024, and continuing to Thursday, February 29, 2024 (standing down on February 19, 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:

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

Access Code: 914-098-901

21All 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.

22Individuals 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.

23Persons 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: Toll-Free 1-888-455-1389 or +1 (647) 497-9391. The access codes are as indicated above.

24There will be no further notice with respect to each of the two hearing events, and the Panel is not seized on either of the hearings.

SETTLEMENT AND MEDIATION

25The parties indicate that they may be in a position to consider mediation once the discovery processes have been completed and expert's reports have been exchanged. The Procedural Order also provides for this possibility. Future requests for Tribunal-led mediation may be submitted upon the agreement of the Parties.

DIRECTIVES AND ORDERS

26The 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

"Astrid Clos"

ASTRID CLOS 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 Tribunal

Tribunal ontarien de l’aménagement du territoire

ATTACHMENT 1

CASE NOS.: OLT-22-004250 OLT-22-004620

PROCEEDING COMMENCED UNDER section 26(b) of the Expropriations Act, R.S.O. 1990, c. E.27.

Claimant: Oakville Developments (2010) Inc. Respondent: Metrolinx Subject: Expropriation / Land Compensation Description: Determination of compensation due to underpass being built at Lakeshore West GO. Reference Number: 08-15-22-2016 and 08-15-22-2017 Property Address: 550 Kerr Street Municipality/UT: Oakville/Halton OLT Case No: OLT-22-004250 OLT Lead Case No: OLT-22-004250 OLT Case Name: Oakville Developments (2010) Inc. v. Metrolinx

PROCEEDING COMMENCED UNDER section 26(b) of the Expropriations Act, R.S.O. 1990, c. E.27.

Claimant: Shoppers Realty Inc. Respondent: Metrolinx Subject: Expropriation / Land Compensation Description: Determination of compensation due to underpass being built at Lakeshore West GO. Reference Number: HR1779615 Property Address: 550 Kerr Street Municipality/UT: Oakville/Halton OLT Case No: OLT-22-004620 OLT Lead Case No: OLT-22-004250 OLT Case Name: Shoppers Realty Inc. 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 video hearing will begin on Monday, February 12, 2024 at 10:00 a.m. as directed by the Tribunal in the Decision issued following the Case Management Conference.

3. The first phase of the hearing (as delineated by the Issues List – Attachment 3 to this Procedural Order) is 13 days to conclude on February 29, 2024. The Tribunal will stand down on February 19, 2024 which is the Family Day. 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 identified at the case management conference are set out in Attachment 1.

5. The procedural timetable of pre-hearing steps is set out in Attachment 2 to this Order.

6. The issues are set out in the Issues List attached as Attachment 3. 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.

7. The order of evidence shall be as set out in Attachment 4 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.

8. 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.

9. 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

10. The Claimant, Oakville Developments (2010) Inc. ("Oakville Developments"), served and filed a Notice of Arbitration and Statement of Claim on August 15, 2022.

11. The Respondent, Metrolinx, served and filed its Reply on September 6, 2022.

12. The Claimant, Shoppers Realty Inc. ("Shoppers"), served and filed a Notice of Arbitration and Statement of Claim on November 7, 2022.

13. The Respondent, Metrolinx, served and filed its Reply on March 13, 2023.

14. The Claimants and the Respondent consent to the consolidation of the two matters.

15. The parties shall exchange their respective Affidavits of Documents and Productions by May 12, 2023.

16. Examinations for Discovery of the representative of each party shall be completed on or before June 30, 2023.

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

18. Any motions arising from either documentary discovery or the Examination for Discovery and answers to undertakings, if necessary, shall be filed with the Tribunal within 30 days of the deadline in paragraph 17 above and will be held by way of videoconference or at a mutually convenient location at the direction of the Tribunal.

19. 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.

20. 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 sixty (60) days prior to the start of the hearing and in accordance with paragraph 35 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.

21. Expert witnesses in the same field shall have a meeting on or before November 15, 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 January 16, 2024.

22. 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 24 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.

23. 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 24 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 24 below.

24. On or before November 1, 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 35 below.

25. Upon review of the exchange of expert witness statements/reports the Parties shall consider and confer on mediation.

26. On or before thirty (30) days prior to the start of the hearing the parties shall confirm with the Tribunal if all the reserved hearing dates are still required.

27. 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 35 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

28. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before December 15, 2023 and in accordance with paragraph 35 below.

29. 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 fifteen (15) days prior to the hearing.

30. 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.

31. 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.

32. 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.

33. Any party choosing to exercise its right to serve a request to admit facts or documents pursuant to Rule 51 of the Rules of Civil Procedure incorporated by reference in Tribunal Rules 1.4 and 26.16 shall serve such request or requests on the party of parties opposite at least 30 days before the hearing date.

34. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before sixty (60) 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.

35. 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.

36. 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 Members are not seized.

So orders the Tribunal.

ATTACHMENT 1 – PARTY LIST

Party	Party Status	Counsel / Representative
Oakville Developments (2010) Inc.	Claimant	Aird & Berlis LLP Brookfield Place, 181 Bay Street Suite 1800, Box 754 Toronto, ON M5J 2T9 Christopher Williams (LSO# 19748D) Tel: 416.865.7745 Email: cwilliams@airdberlis.com Ajay Gajaria (LSO# 63660C) Tel: 416.865.3065 Email: agajaria@airdberlis.com
Shoppers Realty Inc.	Claimant	Weirfoulds LLP 66 Wellington Street West, Suite 4100 TD Bank Tower P.O Box 35 Toronto, Ontario, M5K 1B7 Sean Foran (LSO #31047D) Tel: 416.947.5019 Email: sforan@weirfoulds.com Abbey Sinclair (LSO #64230C) Tel: 647.715.7065 Email: asinclair@weirfoulds.com
Metrolinx	Respondent	M&H LLP 61A Jarvis St., Suite 200 Toronto, ON M5C 2H2 Christel Higgs (LSO #53408T) Tel: 416.947.6701 Fax: 416.947.6703 Email: christel@mhlawyers.ca Ian Mathany (LSO #57197U) Tel: 416.947.6702 Email: ian@mhlawyers.ca

ATTACHMENT 2 – TIMETABLE

Step	Date
Exchange Affidavit of Documents	May 12, 2023
Examinations for Discovery	June 30, 2023
Undertakings to be answered	August 15, 2023
Any motions arising from Examinations or Undertakings to be requested /scheduled	Materials filed within 30 days of the deadline (August 15, 2023)
Further answers to Undertakings to be answered	Within 30 days of the discovery motion, if any
Exchange of Witness List / Expert Witness Statements / Reports / Lay Witness Statements	November 1, 2023
Mediation	Parties to consider and confer on mediation upon review of the exchange of expert reports/statements
Meeting(s) of Like Experts	November 15, 2023
Case Management Conference	December 8, 2023
Exchange of Expert Reply Witness Statements / Reply Reports	December 15, 2023
Agreed Statement of Facts	January 16, 2024
Preparation of Hearing Plan	60 days before hearing
Request to Admit	30 days before hearing
Confirm whether all hearing dates still required	30 days before hearing
Arrange for Court Reporter	15 days before hearing
Joint Document Book	15 days before hearing
Visual evidence	7 days before hearing
Documents to be used in cross-examination	To be provided on or before the first day of the hearing
Hearing	February 12-29, 2024

ATTACHMENT 3 – ISSUES LIST

Phase 1:

The determination of compensation owed to the Claimants pursuant to the Expropriations Act arising from Metrolinx's expropriation of the Claimants' respective property interests on account of market value and injurious affection relating to the taking and not the construction or use of the subject property for the Metrolinx project.

The damages sought by the Claimants are set out in their respective Statements of Claim and include damages sought for market value, injurious affection, interest, reasonable legal, appraisal and other fees and such further and other relief as the Tribunal deems appropriate for the issues in Phase 1 of the hearing.

Phase 2:

All other damages and entitlements of the Claimants under the Expropriations Act not addressed in Phase 1, as set out in their respective Statements of Claim and amendments thereto related to impacts to property rights from future Metrolinx activities or works. Issues related to disturbance damages, any further injurious affection, reasonable legal, appraisal and other fees and such further and other relief as the Tribunal deems appropriate.

Metrolinx reserves its rights to advance any defence including that such claims were advanced in Phase 1 and are therefore barred from further adjudication.

ATTACHMENT 4 – ORDER OF EVIDENCE

1. Oakville Developments' evidence in-chief
2. Oakville Developments' evidence in cross-examination
3. Shoppers' evidence in-chief
4. Shoppers' evidence in cross-examination
5. Respondent's evidence in-chief
6. Respondent's evidence in cross-examination
7. Claimants' replies, if any.

52498222.1