Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: April 21, 2023

CASE NO(S).: OLT-22-002251 (Formerly LC170005)

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

Claimant: 470698 Ontario Ltd.

Respondent: Ministry of Transportation

Subject: Land Compensation

Property Address/Description: 5800 Outer Dr

Municipality: Town of Tecumseh

OLT Case No.: OLT-22-002251

Legacy Case No.: LC170005

OLT File No.: OLT-22-002251

Legacy File No.: LC170005

OLT Case Name: 470698 Ontario Ltd. v. Ontario (Transportation)

IN THE MATTER OF Section 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6, as amended, and Rule 10 of the Tribunal’s Rules of Practice and Procedure

Request by: Ministry of Transportation

Request for: Request for Directions

Heard: April 19, 2023 by video hearing

APPEARANCES:

Parties 470698 Ontario Limited

Counsel Dante Gatti

Parties His Majesty the King in Right of the Province of Ontario as represented by The Ministry of Transportation

Counsel Jonathan Sydor

MEMORANDUM OF DECISION DELIVERED BY ASTRID J. CLOS AND STEVEN COOKE AND ORDER OF THE TRIBUNAL

1The Tribunal convened a Motion Hearing with respect to a Notice of Motion brought on March 24, 2023 pursuant to Rule 26 of the Rules of Civil Procedure requesting leave to amend the Respondent’s Reply by His Majesty the King in Right of the Province of Ontario as represented by The Ministry of Transportation (“MTO”) to specifically plead the limitation period set out in section 22 of the Expropriations Act, R.S.O. 1990. The Notice of Motion was filed as Exhibit 1.

2470698 Ontario Limited (the “Claimant”) filed the Responding Motion with the Tribunal on April 6, 2023, which was marked as Exhibit 2. The Affidavit of Service for the Responding Motion dated April 11, 2023, was filed as Exhibit 3.

3The Claimant filed the Notice of Expropriation dated September 7, 2010, with the Case Coordinator just prior to the start of the hearing. Mr. Gatti, counsel for the Claimant, indicated that this Notice of Expropriation had been excluded in error from the Responding Motion Materials. On consent of MTO, the Notice of Expropriation was entered as Exhibit 4.

4MTO did not file a Reply Motion.

5There is significant history related to this expropriation matter with the Statement of Claim being filed by the Claimant on March 8, 2017. The Reply by MTO, which is now the subject of this motion, was filed on May 24, 2017.

6The Effective Date of the Expropriation is August 19, 2010.

7A Case Management Conference held by the Tribunal on September 28, 2022, approved the Procedural Order and Issues List and scheduled a nine day Merit Hearing to commence on May 15, 2023.

SUBJECT PROPERTY AND SURROUNDING AREA

8Prior to expropriation, the Claimant owned three abutting tenanted parcels of land located in the Town of Tecumseth municipally addressed as 5800, 5820 and 5840 Outer Drive. MTO expropriated 5820 and 5840 Outer Drive in their entirety.

9MTO also expropriated a portion of the property that is currently being utilized as Weston Bakeries Limited, located at 5800 Outer Drive (the “Weston property”).

10The portion of the Weston property expropriated by MTO included part of a septic system providing septic services to the Weston property.

11Truck turning movements to access loading docks on the Weston property encroach upon the land expropriated by MTO and are referenced as the “Weston Access Area”. The status and location of the “Weston Access Area” is not the subject of this Motion Hearing.

MTO MOTION

12Mr. Sydor, counsel for MTO, provided grounds for the motion that pursuant to section 22 of the Expropriations Act, no written notice of damages for injurious affection was delivered by the Claimant to MTO within one year after damages were known by the Claimant and as such are statute barred.

Claim for compensation for injurious affection

22 (1) Subject to subsection (2), a claim for compensation for injurious affection shall be made by the person suffering the damage or loss in writing with particulars of the claim within one year after the damage was sustained or after it became known to the person, and, if not so made, the right to compensation is forever barred. Expropriations Act, R.S.O. 1990, c. E.26, s. 22 (1).

13Mr. Sydor further advanced the grounds that no prejudice will result to the Claimant as a consequence of the proposed amendment to the original Reply dated May 24, 2017.

14Mr. Sydor stated that the substance of the proposed amendment is not relevant to the question of whether the motion should be granted. Further that any prejudice claimed must be from the amendment and not from the substance of the amendment.

15Mr. Sydor referenced paragraph 25 of 1588444 Ontario Ltd. v. State Farm Fire and Casualty Company, 2017 ONCA 42 of the Ontario Court of Appeal:

The law regarding leave to amend motions is well developed and the general principles may be summarized as follows:

The rule requires the court to grant leave to amend unless the responding party would suffer non-compensable prejudice; the amended pleadings are scandalous, frivolous, vexatious or an abuse of the court's process; or the pleading discloses no reasonable cause of action: Iroquois Falls Power Corp. v. Jacob Canada Inc., [2009] O.J. No. 2642, 2009 ONCA 517, 75 C.C.L.I. (4th) 1, at paras. 15-16, leave to appeal to S.C.C. refused [2009] S.C.C.A. No. 367, 2010 CarswellOnt 425; and Andersen Consulting Ltd. v. Canada (Attorney General), 2001 CanLII 8587 (ON CA), [2001] O.J. No. 3576, 150 O.A.C. 177 (C.A.), at para. 37. [page 688]

The amendment may be permitted at any stage of the action: Whiten v. Pilot Insurance Co. (1996), 1996 CanLII 8109 (ON SC), 27 O.R. (3d) 479, [1996] O.J. No. 227 (Gen. Div.), vard (1999), 1999 CanLII 3051 (ON CA), 42 O.R. (3d) 641, [1999] O.J. No. 237 (C.A.), revd [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, 2002 SCC 18.

There must be a causal connection between the non-compensable prejudice and the amendment. In other words, the prejudice must flow from the amendments and not from some other source: Iroquois, at paras. 20-21; and Mazzuca v. Silvercreek Pharmacy Ltd. (2001), 2001 CanLII 8620 (ON CA), 56 O.R. (3d) 768, [2001] O.J. No. 4567 (C.A.), at para. 65.

The non-compensable prejudice may be actual prejudice, i.e., evidence that the responding party has lost an opportunity in the litigation that cannot be compensated as a consequence of the amendment. Where such prejudice is alleged, specific details must be provided: King's Gate Developments Inc. v. Drake (1994), 1994 CanLII 416 (ON CA), 17 O.R. (3d) 841, [1994] O.J. No. 633 (C.A.), at paras. 5-7; and Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1995), 1995 CanLII 7105 (ON SC), 25 O.R. (3d) 106, [1995] O.J. No. 2220 (Gen. Div.), at para. 9.

Non-compensable prejudice does not include prejudice resulting from the potential success of the plea or the fact that the amended plea may increase the length or complexity of the trial: Hanlan v. Sernesky, 1996 CanLII 1762 (ON CA), [1996] O.J. No. 4049, 95 O.A.C. 297 (C.A.), at para. 2; and Andersen Consulting, at paras. 36-37.

At some point, the delay in seeking an amendment will be so lengthy, and the justification so inadequate, that prejudice to the responding party will be presumed: Family Delicatessen Ltd. v. London (City), [2006] O.J. No. 669, 2006 CanLII 5135 (C.A.), at para. 6.

The onus to prove actual prejudice lies with the responding party: Haikola v. Arasenau (1996), 1996 CanLII 36 (ON CA), 27 O.R. (3d) 576, [1996] O.J. No. 231 (C.A.), at paras. 3-4; and Plante v. Industrial Alliance Life Insurance Co. (2003), 2003 CanLII 64295 (ON SC), 66 O.R. (3d) 74, [2003] O.J. No. 3034 (Master), at para. 21.

The onus to rebut presumed prejudice lies with the moving party: Family Delicatessen, at para. 6.

16Mr. Sydor confirmed in response to a question from the Panel, that the “universe of knowledge” has not changed from 2017 when the original Reply was filed to 2023 when the Reply is now proposed to be amended. No explanation was offered by MTO regarding the six year delay in requesting leave to amend the Reply.

CLAIMANT RESPONDING MOTION

17Mr. Gatti acknowledged that pleadings in expropriation matters are routinely amended at various times in the process including during the hearing. He stated that the important factor here is the presumed prejudice resulting from the time delay of six years in bringing this request for the amendment. He further stated that the onus to rebut presumed prejudice lies with the moving party, as established in Family Delicatessen, at para. 6.

18Mr. Gatti confirmed that the Claimant has not met the three part test for providing section 22 notice to MTO as set out in paragraph 105 of the Dartmouth Crossing Limited v. 3113173 Nova Scotia Limited decision. However, had the 2017 MTO’s Reply included the paragraph now proposed to be added, his client could have had the opportunity in 2017 to access witnesses, emails and other documents, which are no longer available in 2023.

19Mr. Gatti asserted that MTO, as the moving party, has not met its onus to rebut this presumed prejudice in their submission.

20Mr. Gatti took the Panel to Paragraph 47 of the Responding Party’s Motion Record:

The MTO’s motion to amend should be dismissed for the following reasons:

a. The passage of time being 6 years from the date of its Reply, and 12 years from the effective date, presumes prejudice, which then shifts the onus of providing a reason for the delay, to the MTO, which the MTO has wholly failed to do.

b. The MTO’s evidence in support of the motion is scant and provides no explanation whatsoever for the MTO’s delay.

c. The MTO’s evidence in support of the motion does not state that the MTO has taken any steps to preserve the key pieces of evidence which can safely be presumed to now be lost.

d. It may be impossible for the Claimant to find and interview Mark Conley, Lynne Sebastian, and Claudio Martini, and even if found these people may have no memories, unreliable memories of what they said and wrote to each other 11 years ago.

e. There is no reasonable expectation that any of the relevant documents, being 11-12 years old, still exist.

f. If the amendment is allowed, it will be impossible for the claimant to investigate the issue and obtain the evidence that existed 12 years ago. The prejudice to the Claimant will be irreversible and incurable and non-compensable.

g. The evidence shows that the MTO had full knowledge of the claim and was taking steps to alter legal relations within 12 months following the date of expropriation.

h. The Procedural Order made on consent, commits the parties to complete a hearing on those issues that the parties identified.

i. It is barred by waiver/promissory estoppel.

j. It is barred by laches.

k. The MTO failed to satisfy its requirement to raise the issue as was mandated by Rule 26.03.

l. At all material times, and within the Section 22 Notice period, the MTO was aware of the nature of the claim, the existence of the claim, and had had the opportunity to preserve any evidence.

MTO REPLY

21Mr. Sydor replied that any delay should be calculated from the 2017 date of the Reply, now requested to be amended, and not from August 19, 2010, the Effective Date of Expropriation.

22Mr. Sydor submitted that the June 21, 2016 letter from Mr. Gatti to MTO as included in Exhibit “T” of the Responding Party’s Motion Record, constitutes a without prejudice settlement offer to which MTO has not waived its privilege and should be disregarded by the Panel in their deliberations.

TRIBUNAL ANALYSIS AND FINDINGS

23The Panel provides its analysis of the general principles regarding leave to amend motions herein.

24The Rules of Civil Procedure require that leave be granted to amend a pleading unless the responding party would suffer non-compensable prejudice. The Panel is persuaded by the submission provided by Mr. Gatti that the six year delay in MTO bringing this motion will make it impossible for the Claimant to produce evidence and thereby his client would suffer non-compensable prejudice.

25There is no dispute between the Parties that the amendment may be permitted at any stage of the action. The Panel is mindful that while an amendment may be permitted at any stage, it is the potential for non-compensable prejudice due to the timing of the requested amendment that is the relevant factor to be considered. In this case the amendment may be permitted, but the potential for non-compensable prejudice does not make it appropriate.

26The Panel is persuaded that there is a causal connection between the non-compensable prejudice and the amendment. In this case, the prejudice flows from the amendment and not from some other source. No explanation was provided by MTO for the six year delay in requesting the amendment.

27The Panel heard evidence that the non-compensable prejudice is actual prejudice. Evidence was presented that the responding party has lost an opportunity, based on the six year delay, as a consequence of the amendment. Mr. Gatti provided specific details in his evidence such that the Panel finds it is reasonable to conclude that, had the amendment been made by MTO in 2017 and not in 2023, the Claimant would have been in a position to obtain the necessary evidence.

28The potential success of the plea or the fact that the amended plea may increase the length or complexity of the hearing was not a factor considered by the Panel in its deliberations.

29The six year delay in seeking the amendment, considered in the context of the August 19, 2010 effective date of expropriation, is so lengthy and the justification from MTO so inadequate, that prejudice to the responding party is presumed by the Panel.

30The Panel is persuaded that the responding party presented evidence which met the onus to prove actual prejudice.

31The Panel is not persuaded that MTO, as the moving party, met its onus to rebut presumed prejudice.

32On an abundance of caution, the Panel has disregarded the June 21, 2016 letter from Mr. Gatti to MTO (as included in Exhibit “T” within the Responding Party’s Motion Record which itself is marked as Exhibit 2 of this decision) in its deliberations. However, the Panel makes no findings regarding the characterization, status or admissibility of this letter.

33On the evidence, the Panel does not grant the motion sought by MTO for leave to amend the Respondent’s Reply.

ORDER

34THE TRIBUNAL ORDERS that the leave requested by the Motion brought by His Majesty the King in Right of the Province of Ontario as represented by The Ministry of Transportation is not granted.

“Astrid J. Clos”

ASTRID CLOS MEMBER

“Steven Cooke”

STEVEN COOKE 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.