Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: June 8, 2023
CASE NO(S).: OLT-22-004573
PROCEEDING COMMENCED UNDER subsection 26(1) of the Expropriations Act, R.S.O. 1990, c. E.27
Claimant: McDonald’s Restaurants of Canada Limited
Respondent: York Region
Description: Determination of compensation
Reference Number: YR2277763
Property Address: 4535 and 4555 Highway 7
Municipality/UT: Vaughan/York
OLT Case No.: OLT-22-004573
OLT Lead Case No.: OLT-22-004573
OLT Case Name: McDonald’s Restaurants of Canada Limited vs York (Region)
PROCEEDING COMMENCED UNDER subsection 9(1) of the Ontario Land Tribunal Act, 2021, S.O. 2021, c. 4, Sched. 6
Request by: McDonald’s Restaurants of Canada Limited
Request for: Request for Directions
Heard: May 19, 2023 by Video Hearing
APPEARANCES:
Parties
Counsel
McDonald’s Restaurants of Canada
Shane Rayman and Brynn Leger
Region of Vaughan
Dan Michaluk and Michael Grant
MEMORANDUM OF ORAL DECISION DELIVERED BY Sharyn vincent ON May 19, 2023 and order of the Tribunal
1McDonald’s Restaurants of Canada (“McDonald’s”), the owner of lands, and operator of premises located on property known municipally as 4535-4555 Highway 7 in the Region of Vaughan, is seeking compensation from the Region attributable to amongst other claims, the cost of the required site plan application arising out of the impact of the road widening across the frontage of the site, the related loss of parking, and mitigation against the claimed business losses, all in connection with the operation of a McDonald's restaurant at the subject property.
2McDonald’s have brought a Motion in accordance with the Tribunal’s Rules of Practice and Procedure, seeking the issuance of a Procedural Order prescribing the various exchange dates to govern a hearing of merit on the issues set out in the pleading, the Statement of Claim sworn and dated November 15, 2022, together with a Confidentiality Order (“CO”), pursuant to the Tribunal’s Rules 19.1 and 22.2.
3The Region filed no responding materials, other than email transmittals to the case co-ordinator, suggesting that the Tribunal adjourn the Motion filed to allow consideration of the assertion that Metrolinx, the purported ultimate beneficiary of the taking, and, as such, the agency liable for any compensation awarded in favour of the Claimant, be given the opportunity to retain Counsel, in order to seek Participant status in the Motion with interests only in the CO.
4Prior to the commencement of the scheduled event, the Tribunal gave direction to and through the Statutory Parties, as follows:
The Tribunal acknowledges Metrolinx’s intended request for participant status in this proceeding pursuant to Rule 7.7. Given that a land compensation matter entails a dispute solely between a Claimant and the expropriating authority, it would be unusual for the Tribunal to add a party or participant to such a proceeding. The Tribunal is not satisfied that the circumstances of Metrolinx’s interest in this case meet the high threshold to warrant the granting of status in a land compensation matter.
The Tribunal expects that any evidence regarding Metrolinx’s interests and or involvement in the project that are relevant to the determination of any compensation owed to the Claimant can be entered through the Region of York as the expropriating authority. This might include any relevant evidence about the Region’s Funding Partnership with Metrolinx with respect to this project.
For the CMC scheduled Friday, May 19th, 2023 at 10:00 AM, the Tribunal trusts that the claimant and respondent will be prepared to address the next steps regarding the claimants motion for confidentiality or on the issuance of a procedural order.
SUBMISSIONS
5Given those directions, the Tribunal had fully expected to receive responding materials from the Region for consideration at the proceeding on May 19, 2023. However, the Region in fact chose to pursue the requested adjournment arguing, in the absence of formal notice and service of the motion by McDonald's upon Metrolinx, that in fact, a fatal flaw in notice had occurred, and, on that basis, the Tribunal had no alternative but to adjourn the matter.
6Responding submissions were considered from McDonald's wherein Counsel set out the chronology of requests filed in the Supplementary Motion materials, dating back to the filing of the Statement of Claim seeking clarification as to the purported relationship between the Region and Metrolinx. All efforts on the part of McDonald's to gain such clarification were either frustrated or remained unanswered, and therefore no onus to serve Notice to Metrolinx has been established..
7It was the contention of Counsel on behalf of the Region that the Tribunal, together with McDonald’s, should be satisfied of the assertions vis a vis Metrolinx’s bona fide standing in the matter, simply by the appearance of Counsel retained on May 12, 2023, at the Motion hearing.
8The Tribunal is gravely concerned about creating any expectations that participants may seek a role in expropriation matters, and therefore having given the direction cited above, it was the expectation of the Tribunal that the Region would have filed whatever affidavit responding material necessary to argue the position taken with respect to Notice, clarify and confirming the liability, if any of Metrolinx, and not further frustrate the Claimant’s efforts to advance their claim.
9The Tribunal extended the timelines prescribed in Rule 10, and directed the Region to file a Responding Motion within seven days, complete with the necessary affidavits to clarify the liability of Metrolinx, together with whatever revisions, if any are requested to the standard CO forming part of the relief sought by the Claimant. The Tribunal was advised that no other aspects of the draft Procedural List or dates therein are in contention
10The Tribunal stood down to allow Counsel, including Counsel retained by Metrolinx, to co-ordinate exchange dates leading up to the continuance date of July 17, 2023.
11Accordingly, the Parties agreed to the following dates:
May 26, 2023 Service of Responding Motion
June 2 Reply, if any
June 16 Completion of any necessary cross-examination
June 30 Filing of Factum
July 7 Filing of Respondent Factum
July 17 Continuance of Motion Hearing
FINAL ORDER
12The Tribunal Orders that the Parties shall adhere to the schedule of exchange dates set out above in readiness to continue consideration of the Motion brought by McDonald’s. All filings will be simultaneously filed with the Tribunal.
“Sharyn Vincent”
SHARYN VINCENT
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.