1353837 Ontario Incorporated v. Stratford (City), 2023 CanLII 36273

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

April 25, 2023

CASE NO(S).:

OLT-22-002455

(Formerly LC120027)

PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27

Claimant:

1353837 Ontario Inc.

Respondent:

City of Stratford

Description:

Determination of compensation

Reference Number:

Plan 44R-3154

Property Address

Parts 13, 16 and 17 on Registered Plan 44R-3154

Municipality/UT:

City of Stratford

OLT Case No.:

OLT-22-002455

Legacy Case No.:

LC120027

OLT Case Name:

1353837 Ontario Incorporated v. Stratford (City)

Heard:

March 22, 2023 by video hearing

APPEARANCES:

Parties

Counsel*/Representative

1353837 Ontario Inc. (“Claimant”)

John Doherty Roberto Aburto Tristan Neill

City of Stratford (“City”)

Christopher Williams Andrea Skinner Tim Hill

MEMORANDUM OF ORAL DECISION DELIVERED BY DAVID L. LANTHIER AND JEAN-PIERRE BLAIS ON MARCH 22, 2023 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This Case Management Conference (“CMC”) was requested by the Parties to address the scheduling of two proposed Motions for Costs arising from the Tribunal’s Decision on the merits issued on October 15, 2021, and the subsequent dismissal of the appeal of that Decision by the Divisional Court on November 25, 2022. Both parties are requesting costs payable by the other.

2The background to this CMC is extensive and complex, both with respect to the machinations of the expropriation process itself and the multiplicity of motions, contentious discovery processes, related court proceedings before the Ontario Superior Court of Justice, and numerous disputes relating to case management and procedural compliance, including the form of the Claimant’s pleadings. The extent to which each of the parties have opposed positions and perspectives with respect to the many events in this long history of this litigation has been aptly demonstrated in the submissions made to the Tribunal in this CMC.

3Although the Tribunal received extensive written submissions from both Parties in advance of the CMC, supporting their respective positions as to why they are entitled to costs, or liable to the other to the extent asserted, little of this information is helpful to the practical necessity of organizing the hearing of the Motions for Costs. The Tribunal agrees with the Claimant that much of this relates to the merits of the hearing itself and is not relevant to what must be decided at this CMC. Some of the information submitted, and the submissions received, does assist the Tribunal in deciding the question of whether the hearing should be phased.

TRIBUNAL’S DECISION AS TO THE MATTER OF COSTS

4The Panel Member, Vice-Chair Sarah Jacobs, provided the following on the matter of costs in the Tribunal’s Decision issued on October 15, 2021:

389Costs awards are determined in accordance with s. 32 of the Act and are dependent on the amount offered by the authority. Where the Tribunal awards an owner 85% or more of the amount offered by the authority, s. 32(1) requires the Tribunal to make an order directing the authority to pay the reasonable legal, appraisal and other costs incurred by the owner for the purpose of determining compensation.

390Conversely, where the amount awarded by the Tribunal is less than 85% of the amount offered by the authority, s. 32(2) affords the Tribunal discretion to make an order for the payment of costs as it considers appropriate.

391The parties agreed that submissions regarding the applicability of s. 32 shall be made following the Tribunal’s determination of compensation in this Decision. The Tribunal will remain seized for the purpose of determining costs in accordance with s. 32 of the Act and will establish the procedure, including a hearing date, to fix the costs associated with this Claim.

5Ordinarily Vice-Chair Jacobs would have remained seized with respect to all matters relating to costs. Due to Ms. Jacob’s retirement from the Tribunal in late 2021, it has been necessary for the Chair of the Tribunal to now direct this Panel to assist in case management of the proposed Motions pursuant to Rule 23.7 of the Tribunal’s Rules of Practice and Procedure (“Tribunal’s Rules”)

6The Chair will similarly be required to direct the appointment of a Panel to hear the Motions as provided for in this CMC Decision.

THE PROPOSED MOTIONS

7The Claimant intends to bring a motion to secure an Order for compensation, payable by the City, for the legal and experts costs incurred by the Claimant in pursuing its Claim under the Expropriations Act (“EA”). This will involve the consideration of the “live issue” of whether s. 32(1) or s. 32(2) of the EA applies, an examination of the City’s offers as made to the Claimant, as well as the appraisal reports prepared and revised and a variety of other matters relating to the issue of entitlement.

8The City intends to bring its motion for costs which will also relate to the offers made to the Claimant and raise issues of the City’s entitlement pursuant to s. 32(2) of the EA. The City’s also relies upon Rule 26.25 of the Tribunal’s Rules and Rule 40 of the Ontario Rules of Civil Procedure, and will be relying upon decisions of the Court which have dealt with the interplay of offers under the Civil Rules, and those provided for in the EA.

THE MATTERS IN DISPUTE AS TO THE ORGANIZATION OF THE HEARING

9From the materials filed, and as aptly summarized by the City, there are three aspects of scheduling that are in dispute:

1. Mediation – The Claimant asserts that there is a real prospect of settling the requests for costs and that to save time and costs, the Tribunal’s procedural directives should first provide for Tribunal-led mediation before hearing the Motions. The City sees no merit in investing further in mediation, or delaying the hearing, given the history of this proceeding and the failure of the Claimant to recognize the City’s request for costs.

2. One Hearing or Bifurcated/Phased Hearings – For reasons of efficiency, the Claimant advocates that there should be two hearings. A first hearing to deal with the question of entitlement on each Motion for Costs, followed by a second hearing, or possibly a written hearing, to determine the quantum of costs based upon the determinations in the first hearing. The City takes the opposed position that out of necessity, there should be only one hearing concurrently determining entitlement and quantum of each request for costs.

3. Order of the Motions - Moving and Responding Parties – The Claimant is of the view that it should be the Party to bring its Motion (first to address entitlement and then on quantum) and the City should then respond to the Claimant’s Motion and presumably advance its own claims. The City is of the view that each Party should bring their respective Motions with the standard form of Response and Reply on each Motion. If that is the case, then the Claimant asserts that it should proceed first at each of the two hearings.

MEDIATION

10As the City is not prepared to proceed to mediation, and with the history of this litigation, the Tribunal will not delay the hearing of the Motions by imposing such a prerequisite to the hearing of the Motions. Should the Parties’ respective positions lead them to a point where there is a shared appetite for mediation, they may certainly contact the Tribunal to make the necessary request.

HEARING FORMAT

11It is noteworthy that the Panel hearing the Motions will not have the benefit of having heard all the evidence and conducted the hearing on the merits first-hand. If the contentious nature of the Motions hinted at while conducting this CMC is any indication, the assigned Panel will be required to assimilate and scrutinize a considerable volume of information and argument. In the Tribunal’s view the work of the assigned Panel would be even more onerous, time-consuming, and difficult if the issues of entitlement and quantum were bifurcated.

12The Tribunal agrees with the City’s submission that given the nature and complexity of the costs issues to be determined, it will be of benefit to the assigned Panel to consider entitlement and quantum together to understand what was done when, by whom, why and for how much. This will allow the Tribunal to exercise its overall discretion to award costs relative to all the factors and offers in the context of the EA and the Ontario Rules of Civil Procedure, and the case law, as opposed to merely the discretion under s. 32(2) of EA which the City will clearly argue is the applicable section.

13Having not presided over the hearing on the merits, nor any prior interim motions, the Panel hearing the subject Motions will unfortunately be considering all facts and submission without the benefit of any acquired familiarity as to the background to the ultimate outcome, save and except for what is presented in the Motions. Awards of costs are discretionary with a great many factors at play in determining questions of both entitlement and quantum and there is significant benefit to adopting a holistic approach to considering all the substantial evidence, argument and law relating to both determinations. Understanding the conduct of the Parties, relative to milestones in the progress of the proceeding and all interim procedural motions up to the point of the hearing, may involve an understanding of the quantum of costs incurred at those milestones and claimed by a Party at various stages. The offers will obviously factor greatly in the position of the Parties and understanding the numbers at play in those offers (and appraisals), relative to the amounts being claimed for different portions of the proceedings, may be helpful in considering the question of entitlement.

14Removing the quantification of the costs from the determination of the Motions would, in the Tribunal’s view, create potentially problematic gaps in the assigned Panel’s understanding of the underlying storyboard of the entire proceeding, which is something necessary when exercising the discretion to award costs. Deciding the question of costs will be difficult enough when the Panel will not have presided over the hearing, and, as the City has noted, presenting all the evidence and information, inclusive of the quantum of the costs claimed by a Party, will help to inform the question of the reasonableness of the conduct of both Parties.

15The Tribunal is also persuaded that bifurcating the hearing of the two Motions into two parts, with the issue of entitlement first determined, and subsequently quantum, will give rise to a much more complex and difficult post-decision landscape for the consideration of appeals. Were the hearing divided, appeals might first be launched in the Tribunal’s decision on entitlement and a second set of appeals would eventually be poised to proceed following a subsequent Decisions on the quantum of costs, however that second hearing on quantum might eventually be scheduled. This is, in the Tribunal’s view, potentially costly, inefficient, overly complicated and unnecessary.

16As a result, the Tribunal finds that it is expedient and appropriate for the matters of entitlement and quantum to be dealt with in one hearing. The hearing of the two Motions will not be phased.

17To be clear, the directives of the Tribunal in this CMC Decision are not intended to fetter the ultimate manner in which the presiding Panel might consider the Motions and decide the issues before it. This includes the discretion of the presiding Panel to consider whether any part of the assessment and quantification of costs should be deferred or directed to an assessment officer under s. 32, or to stand down to consider a particular question before continuing, and to otherwise organize the hearing as the Panel may deem appropriate in its discretion.

ORDER OF THE MOTIONS – MOVING AND RESPONDING PARTIES

18The Tribunal does not feel it is advantageous, nor appropriate for procedural fairness, that the Claimant be the Moving Party in all respects, with the City only responding to one Motion. The City clearly has its own Motion to bring before the Tribunal independent of the Claimant, though obviously the facts and arguments will be intertwined in the two Motions to some extent.

19The two Motions will accordingly be before the Tribunal concurrently, with each Party bringing their respective Motion, the other Party responding in the ordinary course to the other Party’s Motion, with the right of Reply available to each moving Party as set out in the appended Procedural Order.

20As indicated during the CMC, the only question that remains is which of the two Motions will be argued first. While it might be preferable to let the presiding Panel decide this question, it is likely necessary that the Parties know the answer to this question well in advance. Which of the two Motions will be argued first will assist each Party in the structuring and organization of their written Motion materials and oral argument. Determining who goes first may also allow for the parties to avoid duplication and repetition of some material in the argument of the second Motion that has already been covered in the first argued Motion.

21For the purposes of the order of the argument of the two Motions at the hearing, the Tribunal accordingly directs that the Claimant’s Motion will proceed first, with Claimant presenting Oral argument first on its Motion, followed by the City’s Response to the Motion, and then the Claimant’s Reply.

22The City’s Motion will thereafter be heard, followed by the Claimant’s Response to the City’s Motion, and then the City’s Reply.

PROCEDURAL ORDER AND DIRECTIVES

23Appended 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 two Motions.

24Additional directives are set out below and are intended to supplement the directives set out in the Procedural Order.

HEARING OF THE MOTIONS – NOVEMBER 6, 2023.

25Although 3 to 4 days was estimated as sufficient for argument of the Motions, the Tribunal will err on the side of caution and set aside a full five days to avoid the necessity of adjourning the hearing before it is completed. This will also provide the Panel with some flexibility in organizing the hearing once the Motion materials have been received.

26The five-day video hearing will commence at 10 a.m. on Monday, November 6, 2023. 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/719383509

Access Code: 719-383-509

27For 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.

28Individuals 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.

29Persons 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 1-888-299-1889 or +1 (647) 497-9373. The access codes is 719-383-509.

FURTHER DIRECTIVES

30The following additional directives of the Tribunal are provided with respect to the Hearing of the Motions:

(a) Parties must ensure that in preparing their Motion materials they include copies of all documents, transcripts, exhibits, and materials they are relying upon. The parties are not to simply cross-reference a document or material contained within the Tribunal’s file or the hearing record with the expectation that this will be readily accessible to the Panel from the Tribunal’s voluminous files. Copies of all source material and relevant documentation must accordingly be included in the written record presented in support of the Motions such that it will be unnecessary for the Panel to go beyond the written materials filed on the Motions under the Procedural Order and this Decision.

(b) Not less than three weeks prior to the deadline for the filing of the Motions Records, the Parties are directed to discuss whether and what material can be included in a Joint Compendiums for use by the parties in preparation and argument of the Motions, and to file such a Compendium with the Tribunal. This Joint Compendium may include such things as relevant pleadings, documents and exhibits, transcripts, or decisions of the Tribunal and Courts.

(c) When assembling documentation for the Motions the Parties should be mindful of the total size of any one PDF document. Very large documents should, where necessary, be subdivided for ease of opening and navigation during the hearing.

(d) For consistency and clarity of reference in the two Motions, where the moving and responding parties will be transposed, the two Parties should be identified only as the “Claimant” and the “City” rather than the moving party or responding party.

31There will be no further notice with respect to the scheduled Motions, and these Panel Members are not seized for the purposes of hearing those Motions.

32The Tribunal so orders and provides these CMC directives for the purposes of the case management of the hearing of the Motions.

“David L. Lanthier”

DAVID L. LANTHIER

VICE-CHAIR

“Jean-Pierre Blais”

JEAN-PIERRE BLAIS

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.

Attachment 1

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

Claimant:

1353837 Ontario Inc.

Respondent:

City of Stratford

Description:

Determination of compensation

Reference Number:

Plan 44R-3154

Property Address

Parts 13, 16 and 17 on Registered Plan 44R-3154

Municipality/UT:

City of Stratford

OLT Case No.:

OLT-22-002455

Legacy Case No.:

LC120027

OLT Case Name:

1353837 Ontario Incorporated v. Stratford (City)

PROCEDURAL ORDER

1. This Procedural Order governs the processes which will lead to the Tribunal’s determination of the concurrent Motions for costs brought by both the Claimant and the City. The Claimant and the City each seek an award of costs against the other in respect of this proceeding.

2. 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. These directions are also in addition to those Directives included in the CMC Decision to which this Procedural Order is appended.

Organization of the Hearing

3. The video hearing will begin on Monday, November 6, 2023 at 10:00 a.m. in accordance with the hearing coordinates and notice set out in the Tribunal’s CMC Decision.

4. The parties’ initial estimation for the length of the hearing is 3 days. Out of an abundance of caution, and to permit the presiding Panel some flexibility in scheduling the Motions, five (5) hearing days have been set aside. The Parties are to cooperate to discuss means to organize and expedite the presentation of argument at the hearing.

5. The parties to the hearing of the Motions are the Claimant and the City.

Requirements Before the Hearing

6. Exchange of Motion Materials

a. The Claimant and the City shall each serve their respective motions for costs on or before: Thursday, June 22, 2023

7. Exchange of Responding Materials

a. The Claimant and the City shall each serve their respective responding materials (if any) on or before: Thursday, August 17, 2023

8. Exchange of Reply Materials

a. The Claimant and the City shall each serve their respective reply materials (if any) on or before: Thursday, August 31, 2023

9. Cross-examinations on Affidavits (if any)

a. Cross-examinations on affidavits (if any) shall occur during the week of: September 11-15, 2023

10. Exchange of Facta, Books of Authorities and Compendiums

a. The parties shall exchange facta (30 page-limit), books of authorities and compendiums on or before: Thursday, September 28, 2023

11. Exchange of Responding Facta, Books of Authorities and Compendiums (if any)

a. The parties shall exchange responding facta (15-page limit), books of authorities and compendiums (if any) on or before: Thursday, October 12, 2023

12. The parties shall prepare and file a preliminary hearing plan, that addresses the expected timing of submissions, with the Tribunal on or before October 20, 2023.

13. All filings shall be submitted electronically unless advised otherwise by the Tribunal. In the event the Tribunal advises the Parties that hard copies of all filings is required after some documents have already been filed in accordance with the chronology provided for in this Procedural Order, the Parties shall forthwith file hard copies of the filings electronically filed to that date. 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. Other directives as to the filing of Motion Materials is provided for in the Tribunal’s Decision.

14. 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.

The Panel Members are not seized with respect to the hearing of the Motions.

So orders the Tribunal.