Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE:

June 15, 2023

CASE NO(S).:

OLT-23-000052

PROCEEDING COMMENCED UNDER subsection 6(2) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended

Expropriating Authority:

Metrolinx

Owner:

Toronto Standard Condominium Corporation No.1725

Owner:

Toronto Standard Condominium Corporation No.1756

Owner:

Toronto Standard Condominium Corporation No 1825

Owner:

Madhubhai Toprani

Property Address:

47 Brickworks Lane

Municipality/UT:

Toronto

OLT Case No.:

OLT-22-000052

OLT Lead Case No.:

OLT-22-000052

OLT Case Name:

Toronto Standard Condominium Corporation No.1725 et. al. v. Metrolinx

Heard:

May 12, 2023, by Video Hearing

APPEARANCES:

Parties

Counsel*/Representative

Metrolinx

Christel Higgs*

Aisling Flarity*

Toronto Standard Condominium Corporation 1725

Toronto Standard Condominium Corporation 1756

Toronto Standard Condominium Corporation 1825

Joel Farber*

Matthew Rutledge*

Madhubhai Toprani

Self-Represented

REPORT DELIVERED BY DAVID BROWN AND ORDER OF the TRIBUNAL

1This is a report of a Hearing of Necessity held under s. 7 of the Expropriations Act, R.S.O. 1990, c. E. 26, as amended (the “Act”). Informal inquiries are held to determine whether the proposed taking by the expropriating authority of an owner’s land is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority” as the Act states. The courts have interpreted this test to be whether the proposed taking is “reasonably defensible”.

2Metrolinx, as the expropriating authority, intends to take a portion of land from each of Toronto Standard Condominium Corporation 1725 (“TSCC 1725”), Toronto Standard Condominium Corporation 1756 (“TSCC 1756”), and Toronto Standard Condominium Corporation 1825 (“TSCC 1825”) (collectively “Brickworks Lane”) in the form of a fee simple taking, an easement for maintenance, and a temporary easement to facilitate construction. The subject lands are located along the westerly side of the Kitchener GO Rail Corridor, north of St. Clair Avenue West. The extent of the takings is described on the plans found at Tabs 21, 24, and 27 of the Document Brief (Exhibit 2). A conceptual drawing detailing the breakdown of the fee simple taking, the easement, and the temporary easement for each parcel is found at Tabs 22, 25, and 28 of Exhibit 2.

3Metrolinx is constructing a new SmartTrack/GO Train station in partnership with the City of Toronto as part of the GO Train expansion projects to construct new stations throughout the GO Train rail network and increase GO Train service. The taking will facilitate the development of the proposed St. Clair-Old Weston Station.

REQUEST FOR ADJOURNMENT

4The Tribunal received a request on the eve of the hearing from Brickworks Lane seeking an adjournment of the proceedings. Mr. Farber addressed the request advising that the lands to be taken are comprised of a berm, noise wall, visitor parking spaces, hydro transformer and landscaping area. The original Notices of Application for Approval to Expropriate Land (the “Notices”) indicated that the entirety of the lands are to be taken, whereas the documents filed with the Tribunal indicate that there will be a combination of a fee simple taking, a permanent easement, and a temporary construction easement. No information has been provided as to why the make-up of lands to be expropriated has changed and Brickworks Lane has not had sufficient time to determine the impact of the change and whether the proposed easements are fair, sound, and reasonable.

5Mr. Farber advised the Tribunal that he has requested additional information from Metrolinx with respect to the wording of the easement documents and the post construction details and has had no response to date.

6Mr. Farber advised that TSCC 1825 have advised him that they will be seeking new legal counsel and TSCC 1825 is requesting an adjournment to allow them to secure new representation. Mr. Farber confirmed with the Tribunal that he is authorized to act on behalf of TSCC 1825 for this hearing event.

7Ms. Higgs advised that Metrolinx opposes the request for adjournment. The purpose of the hearing is to provide information about the proposal and explain the necessity of the expropriation. Ms. Higgs explained that the design is approximately 75% complete. During recent revisions it was determined that the takings can be reduced and the proposed easements would be sufficient to meet the needs for the new SmartTrack/GO Train station.

8Ms. Higgs advised that the Notices were served upon the owners on December 14, 2022. A written request for a hearing was received on January 10, 2023, from Madhubhai Toprani, a unit owner in TSCC 1825 and a further written request for hearing was received on January 12, 2023 on behalf of Brickworks Lane. On January 24, 2023, Metrolinx requested the Tribunal to convene a hearing.

9Ms. Higgs advised that Metrolinx provided access to the documents on which they intend to rely upon at the hearing ten days prior to the hearing, notwithstanding that the Act only requires the documents to be provided five days prior to a hearing.

10Ms. Higgs referred the Tribunal to the decision of Ball v. Ontario Hydro, 1974 CanLII 705 (ON HCJDC), 1974 CarswellOnt 375, 6 O.R. (2d) 631, where, in paragraph 22, the Court finds,

The Act in s. 7(4) requires the expropriating authority to serve a notice indicating the grounds upon which it intends to rely at the hearing and to make available any documents which it intends to use. The Act does not require Ontario Hydro to present all relevant material. It may well be inadvisable that it should be required to present all its current studies including those on the drafting board. It is only required to show that the taking is reasonably defensible, to show the case that the owners must meet.

11Ms. Higgs proffered that the Tribunal does not have the authority to require the production of documents and contends that Metrolinx has provided ample documentation on which it intends to rely and no further production of documents is required.

12In consideration of the request for an adjournment, the Tribunal considered the submissions of Mr. Farber and Ms. Higgs. The Tribunal further considered the requirements for the provisions of notice and documentation as set out in s. 7(4) of the Act and the statutory test contained in s. 7(5) of the Act.

13The Act requires that the expropriating authority serves a notice indicating the grounds on which it intends to rely and make available any documents it intends to use at the hearing. The Tribunal interprets the grounds as the rationale for the proposed takings. The Act does not require the Tribunal to consider the specifics of the ultimate development or use of the lands, only that the takings are fair, sound and reasonably necessary in the achievement of the objectives of Metrolinx in this instance. The Tribunal finds that Metrolinx has provided the documentation they intend to rely upon. The documentation requested by Brickworks Lane addresses the ultimate development contemplated and the specifics of the final form of the wording of the easement and not the grounds for the requested taking.

14The matters raised as the basis for the Brickworks Lane request for adjournment are matters that can be appropriately addressed at a subsequent stage in the process, should the Tribunal determine that the taking is deemed fair, sound and reasonably necessary as required by the Act.

15The request for adjournment by Brickworks Lane is denied and the hearing will proceed.

16The request to adjourn made by TSCC 1825 to allow TSCC 1825 to retain new legal counsel is denied. TSCC 1825 has legal counsel for this hearing and are free to pursue new counsel after this hearing event. The Tribunal’s Rules of Practice and Procedure set out specific provisions for consideration of a request for an adjournment and the Tribunal finds that allowing such a request will not result in a fair and just consideration of the matter before the Tribunal.

SUBMISSIONS

17Ms. Higgs reviewed the Notice of Grounds (Tab 1, Exhibit 2) that Metrolinx intends to rely upon. Ms. Higgs summarized and highlighted the following for the Tribunals attention:

1(a) increased demand for service by GO Transit,

1(c) implement the Metrolinx’s GO expansion program and integration with the public transit provided by the Toronto Transit Commission (“TTC”);

1(d) implement the New SmartTrack Stations Environmental Project Report;

1(g) improved local access to higher order rapid transit;

1(i) construct an additional mainline track through this portion of the Kitchener GO rail corridor;

1(k) ongoing maintenance of rail corridor infrastructure; and

1(l) provide a safe separation between trains, motor vehicles, pedestrians and workers undertaking construction work within the corridor.

18David Hopper, a professional engineer with considerable experience overseeing transit projects and currently part of the team of technical advisors to Metrolinx in respect to this project, was qualified by the Tribunal as an expert in civil engineering to provide opinion evidence.

19Mr. Hopper testified that Metrolinx is responsible for public transit service across the Greater Toronto and Hamilton Area. They coordinate with area municipalities to identify opportunities to provide additional services and connections with existing services. The Kitchener GO rail corridor, referred to as the “innovation corridor” links universities in Kitchener / Waterloo with Toronto. The proposed St. Clair West – Old Weston Station is located along this corridor and is proposed to link with current TTC bus and streetcar service along St. Clair Avenue West.

20The St. Clair–Old Weston Station location was identified as being located within a potential growth area and was identified as an appropriate location for a joint venture with the City of Toronto and the SmartTrack Station project. The location is appropriate for a station to accommodate GO Train service expansion, UP Express service to the airport and a SmartTrack station with airport access.

21A Transit Planning Assessment Program (“TPAP”) was conducted to evaluate the potential environmental effects of the proposed station project. Mr. Hopper likened the TPAP to an environmental assessment specifically designed to evaluate transit projects.

22Mr. Hopper reviewed the design concept for the proposed station which includes a TTC bus loop accessed from Union Street, two tunnels to access the platforms from the easterly side of the tracks, and pedestrian accesses and the construction of a main station building and a second structure at the north end of the station. He noted that connections to the TTC services was a priority in the design considerations, as were pedestrian and cycling connections. Mr. Hopper advised that the project includes the construction of an extension of Gunn Road including a bridge over the rail corridor north of the proposed station. The St. Clair Avenue West bridge will be reconstructed and widened to accommodate the addition of two new tracks and improvements to St. Clair Avenue West.

23Tab 30 of Exhibit 2 includes a series of plans and drawings that identify the fee simple taking lands, the permanent easement lands, and the temporary easement lands across the Brickworks Lane lands. Mr. Hopper identified the locations of the new tracks, proposed platform locations, and the proposed tunnels, elevator and stair locations. Cross-section drawings identified the proposed retaining wall (crash wall) and noise barrier atop the wall and the relationship to the finished grade on the Brickworks Lane side of the wall.

24Mr. Hopper submitted that the proposed permanent easement is required to ensure the long-term ability for Metrolinx to upgrade and maintain the exterior side of the infrastructure including the retaining wall and noise wall structures. The proposed easement is approximately 3.0 meters (“m”) in width and will be accessed from the rail corridor side of the easement and not the Brickworks Lane side of the lands. The temporary easement is required only during the construction of the station and will be used for maintaining construction fencing and safety hoarding around the construction work. Mr. Hopper confirmed that the fencing and hoarding will be confined to the rail corridor side of the existing driveway and no access to the construction area will be provided from the Brickworks Lane properties.

25Mr. Hopper confirmed that the existing visitor parking spaces that will be impacted by the construction will be reinstated at the conclusion of the project, however in a configuration parallel to the private road within the Brickworks Lane properties as a result of the reduced depth of the lands adjacent to the rail corridor. Further, it is proposed that the existing transformer will be protected and will remain during construction. Mr. Hopper proffered that the post construction landscape plans on the easement lands will be limited.

26Mr. Hopper reviewed the alternative considerations and the impacts of shifting the proposal farther east, away from the Brickworks Lane lands, which required significantly greater impact on municipal infrastructure and the Canadian Pacific Railway main lines. The descending grade slope to the south of St. Clair Avenue West are not appropriate for a station, specifically the stopping and starting of trains on a grade. Further, the significant retaining walls along both sides of the rail corridor in this area restrict the corridor width such that it can not accommodate the required platforms.

27Mr. Farber requested that proposed takings do not extend beyond the easterly curb along the condominium road adjacent to the proposed takings. Further, Brickworks Lane requests assurances that the easement will not impact the transformers within the proposed easement lands and that the impacted visitor parking spaces will be reinstated upon completion of the station works. Mr. Farber requested that proposed takings along the St. Clair Avenue West frontage will not impact the existing retaining walls in the area of the proposed multi-use pathway and that the multi-use pathway will be located wholly within the limits of the fee simple taking. With respect to the language in the proposed easement documents, he submitted that the easement provides for much more than was described by Mr. Hopper and requested that the language be revised to capture access for maintenance and upgrade purposes only and does not include buildings and structures.

28Mr. Toprani submitted that there has not been sufficient risk assessment undertaken by Metrolinx in respect to the proposal. He proffered that a fulsome noise and vibration analysis is required, and this has not been completed. Mr. Toprani opined that direct access from St. Clair Avenue West to the proposed station could be achieved with the construction of the new bridge structure and requested the final design be completed before the approval of the expropriation so that he may fully understand the impact of the proposal.

ANALYSIS AND FINDINGS

29In consideration of the submissions proffered by Mr. Hopper, the Tribunal finds that the nature and extent of the takings proposed to achieve the objectives of Metrolinx have been fully described.

30The Tribunal finds that the materials provided in Exhibit 2 are comprehensive and the documents detail the objectives of Metrolinx in support of the requested takings including the implementation of the GO Train expansion program in response to the increased demand for service and integration with the TTC.

31The Tribunal notes that an Inquiry Officer cannot challenge the expropriating authority’s policy decision to expropriate, but only consider whether taking of these particular portions are appropriate to achieve the objectives. Metrolinx acknowledges that the design plans are not finalized and are still being refined, however, the Tribunal finds that it is clear that in order to achieve their objectives, Metrolinx requires the portions of the owners’ land to construct the proposed SmartTrack/Go Train station at this location. The Tribunal is satisfied that alternative options have been considered and the proposed design represents the optimal scenario.

32The Tribunal finds that the request is reasonably defensible in the achievement of the objectives of Metrolinx as set out by the Courts in Parkin v. The Queen in right of Ontario et al., 1978 CanLII 1254 (ON CA), 19 O.R. (2d) 473.

33The request to modify the wording of the easement proposed is a matter to be negotiated between the Parties and the Tribunal finds that the wording of the easement does not impact its determination as to whether the takings are fair, sound, and reasonable to achieve the objectives of the expropriating authority.

34In consideration of the submissions of Mr. Toprani, the Tribunal is satisfied that the expropriating authority has undertaken sufficient works as identified in the TPAP addressing the matters identified by Mr. Toprani.

35For the reasons set out above, the Tribunal finds:

A) That the taking of part of the Common Elements of Toronto Standard Condominium Plan 1825 in a size and configuration generally described on Drawing No. SK-PIN Block 12825, found at Tab 28 of Exhibit 2, of a fee simple interest in the lands shown as Part 1 on the drawing, a permanent easement over the lands shown as Part 2 on the drawing, and a temporary easement over the lands shown as Part 3 on the drawing is fair, sound, and reasonably necessary in the achievement of the objectives of Metrolinx.

B) That the taking of part of the Common Elements of Toronto Standard Condominium Plan 1725 in a size and configuration generally described on Drawing No. SK-PIN Block 12725, found at Tab 22 of Exhibit 2, of a fee simple interest in the lands shown as Part 1 on the drawing, a permanent easement over the lands shown as Part 2 on the drawing, and a temporary easement over the lands shown as Part 3 on the plan is fair, sound, and reasonably necessary in the achievement of the objectives of Metrolinx.

C) That the taking of part of the Common Elements of Toronto Standard Condominium Plan 1756 in a size and configuration generally described on Drawing No. SK-PIN Block 12756, found at Tab 25 of Exhibit 2, of a fee simple interest in the lands shown as Part 1 on the drawing, a permanent easement over the lands shown as Part 2 on the drawing, and a temporary easement over the lands shown as Part 3 on the drawing is fair, sound, and reasonably necessary in the achievement of the objectives of Metrolinx.

“David Brown”

DAVID BROWN

MEMBER

Ontario Land Tribunal

Website: www.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.