Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: May 26, 2023
CASE NO(S).: OLT-22-002362
PROCEEDING COMMENCED UNDER subsection 26(b) of the Expropriation Act, R.S.O. 1990, c. E.26, as amended
Claimant: Motek Cultural Initiative
Respondent: Metrolinx
Subject: Land Compensation
Property Address: 1 Atlantic Avenue
Municipality: City of Toronto
OLT Case No.: OLT-21-002362
OLT Lead Case No.: OLT-21-002362
OLT Case Name: Motek Cultural Initiative v. Metrolinx
PROCEEDING COMMENCED UNDER subsection 9(1) of the *Ontario Land Tribunal Act, 2021*, S.O. 2021, c. 4, Sched. 6
Motion By: Metrolinx
Purpose of Motion: Request for Determination
Subject: Land Compensation
Municipality: City of Toronto
Heard: April 28, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
Metrolinx
A. Flarity M. Cherkas
Motek Cultural Initiative
S. Spitz C. Harris (in absentia) L. Cummings (in absentia)
DECISION DELIVERED BY G.A. CROSER AND D. CHIPMAN AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Metrolinx registered a Plan of Expropriation for the lands known municipally as 1 Atlantic Avenue (the "Subject Lands") on May 18, 2021. The Subject Lands contained a two-storey commercial building. The Claimant, Motek Cultural Initiative ("Motek"), a registered Canadian charity, occupied a unit in that building.
2A Notice of Expropriation and Statement of Claim was filed by the Claimant on February 16, 2022. Since that date, the Parties have appeared before the Tribunal on numerous occasions with seemingly little headway being made towards the resolution of this matter.
MOTION TO DISMISS
3Metrolinx filed a motion requesting that the Tribunal either dismiss the Claimant's claim due to its failure to produce tangible evidence in support of its claim for damages or, in the alternative, that the Claimant provide a further and better Affidavit of Documents on or before May 5, 2023.
4Metrolinx also requested that the June 2023 hearing dates be released, as it was impossible to move forward in a manner at this point that was not prejudicial to Metrolinx.
5Metrolinx pointed out that the Claimant had failed to respond to this latest Notice of Motion and had not filed materials with the Tribunal in accordance with Rule 10 of the Tribunal's Rules of Practice and Procedure.
6An 'Aide Memoire' was filed by the Claimant the day before the hearing, which, according to Metrolinx, was inappropriate and improper. Metrolinx stated that any evidence the Claimant wished to rely upon at the motion should have been provided by way of an affidavit rather than submissions by Counsel in an 'Aide Memoire'.
7Counsel for the Claimant stated she was only introduced to this file in the past twenty-four hours, but that Motek had no objection to the deadline date of May 5, 2023, for the delivery of a Supplementary Affidavit of Documents and as such, this Motion was unnecessary.
8Counsel for the Claimant acknowledged that the Aide Memoire was not filed in accordance with Rule 10. However, she argued that the dismissal of the claim was an extraordinary remedy that was unwarranted in this case. She stated the Claimant has a viable claim and should be provided a reasonable opportunity to provide its documents.
9Counsel for the Claimant had no instructions to oppose an adjournment of the June hearing and agreed that, given the circumstances, it would be appropriate.
COSTS
10Metrolinx requested costs to-date on this file on a substantial indemnity basis.
11Metrolinx argued that the Claimant has denied Metrolinx the opportunity to know the case that it is facing, and that it has been forced to spend considerable resources to ensure that the Claimant meets its most basic obligations with respect to this matter.
12Motek argued that costs should be stayed until the hearing of this matter on its merits or, in the alternative, costs should be limited to those incurred to file this motion.
FINDINGS
13The Tribunal's mandate is to provide fair, effective, and efficient means to resolve disputes. It is inefficient and a waste of its limited resources to make repeated Orders, set deadlines, and schedule hearings when the Parties are not in a position to proceed.
14It is not Metrolinx or the Tribunal's role to cajole the Claimant towards meeting its procedural obligations. While Counsel for the Claimant may be new to the file, the Claimant and the other lawyers of record are not. The onus is on the Claimant to substantiate its claim for damages and to meet the deadlines set out in the Procedural Order.
15Metrolinx has the reasonable expectation that it will be provided a meaningful opportunity to respond to the Claimant's evidence. However, the delay does not necessarily equate with a baseless claim. Motek has submitted some documents in support of its claim. The veracity of those documents and how much weight they should be accorded is for a Member hearing the claim on its merits to decide.
16The submissions in the 'Aide Memoire' were not considered by the Panel in rendering its decision on the Motion to dismiss. The Claimant is directed to follow the Tribunal's Rules of Practice and Procedure as it relates to the submission of Reply material in any future motion on this matter.
17As both Parties agreed to a deadline of May 5, 2023, for the delivery of a Supplementary Affidavit of Documents, the Tribunal withheld its decision on this matter until after this date.
18The Claimant did not provide Metrolinx with its Supplementary Affidavit of Documents by the agreed upon date. However, on May 9, 2023, Counsel for the Claimant communicated to the Tribunal that it was in receipt of additional documents and that they were being organized for production.
DECISION
19The Tribunal finds that the Parties are not in a position to move forward with the hearing scheduled for June 2023 and these dates have been released.
20On the consent of both parties, a Case Management Conference (CMC) has been scheduled for Thursday, June 15, 2023.
21At this CMC it is expected that the Parties will provide an update on steps that have been taken to move this file towards resolution. It would behoove the Claimant to be proactive in scheduling examinations and communicate with Metrolinx to prepare a new draft Procedural Order in advance of the CMC.
22With respect to costs, the Tribunal is mindful of Member Taylor's August 2022 Order that costs will be dealt with by the Member at the hearing on the merits. However, the April 28, 2023, motion and the necessity of another CMC on Thursday, June 15, 2023, were not foreseen by Member Taylor.
23A decision on the costs of the April 28, 2023, motion will be suspended until the June 15, 2023, CMC, at which time Parties should be prepared to make submissions on how to address this matter.
24The next CMC hearing is scheduled to commence on Thursday, June 15, 2023, at 10 a.m. by Video Hearing.
25Parties and Participants are asked to log in to 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/687587165
Access code: 687-587-165
26Parties and Participants are asked to set up the Video Hearing application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at Go To Meeting, or a web application is available: https://app.gotomeeting.com/home.html
27Persons 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. The access code is 687-587-165.
28Individuals 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 Video Hearing 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.
INTERIM ORDER
29In accordance with Rule 17.5 of the Tribunal's Rules of Practice and Procedure, the June 2023 hearing dates are hereby vacated on the consent of both Parties.
30The Parties are expected to continue to take steps to move this file forward before the June 15, 2023, CMC date, and file with the Tribunal, 10 days in advance of the CMC date, an updated draft Procedural Order.
31The Panel remains seized.
"G.A. Croser"
G.A. CROSER
MEMBER
"D. Chipman"
D. CHIPMAN
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.