Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 23, 2023

CASE NO.: OLT-22-003177

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

Claimant: Newgen Restaurant Services Inc.

Expropriating Authority: Metrolinx

Subject: Determination of compensation

Description: Newgen Restaurant Services Inc. (o/a o/a Smith Bros. Steakhouse Tavern) seeks compensation for injurious affection and disturbance damages

Property Address: 1940 Eglinton Avenue E

Municipality/UT: Toronto/Toronto

OLT Case No: OLT-22-003177

Legacy Case No: LC200025

OLT Lead Case No: OLT-22-003177

Legacy Lead Case No: LC200025

OLT Case Name: Newgen Restaurant Services Inc. v. Metrolinx

BEFORE:

S. Cooke Vice-Chair

Monday, the 23rd day of January, 2023

THE TRIBUNAL having previously issued a procedural order (PO) for this matter in it’s decision issued on February 16, 2021, and the Tribunal having been provided by the Parties with an amended PO to govern this matter;

THE TRIBUNAL ORDERS that the previous PO is hereby replaced with the procedural order attached as Attachment “A” to this order.

“Euken Lui”

EUKEN LUI ACTING REGISTRAR

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.

ISSUE DATE: CASE NO(S).: OLT-22-003177

PROCEEDING COMMENCED UNDER the Expropriations Act, R.S.O. 1990, c. E.26, as amended and in the matter of an Arbitration:

Applicant(s)/Appellant(s): Newgen Restaurant Services Inc. (o/a Smith Bros. Steakhouse Tavern)

Subject: Injurious Affection and Disturbance Damages

Property Address/Description: 1940 Eglinton Avenue East

Municipality: City of Toronto

Municipal File No.:

OLT Case No.: OLT-22-003177

OLT File No.: OLT-22-003177

OLT Case Name: Newgen Restaurant Services Inc. (o/a Smith Bros. Steakhouse Tavern) v. Metrolinx

FRESH AS AMENDED PROCEDURAL ORDER

1. 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.

Organization of the Hearing

2. The video hearing will begin on April 24, 2023, at 10:00 a.m. at

Video Hearing Link: https://global.gotomeeting.com/join/442599157

3. The length of the hearing is five (5) days. The parties are expected to cooperate to reduce the length of the hearing by eliminating redundant evidence and attempting to reach settlements on issues where possible.

4. The parties and participants identified at the case management conference are set out in Attachment 1.

5. The issues are set out in the Issues List attached as Attachment 2. There will be no changes to this list unless the Tribunal permits, and a party who asks for changes may have costs awarded against it.

6. The order of evidence shall be provided on or before seven (7) days before the hearing. The Tribunal may limit the amount of time allocated for opening statements, evidence in chief (including the qualification of witnesses), cross-examination, evidence in reply and final argument. The length of written argument, if any, may be limited either on the parties’ consent, subject to the Tribunal’s approval, or by Order of the Tribunal.

7. Any person intending to participate in the hearing should provide a mailing address, email address and a telephone number to the Tribunal as soon as possible – ideally before the case management conference. Any person who will be retaining a representative should advise the other parties and the Tribunal of the representative’s name, address, email address and the phone number as soon as possible.

8. Any person who intends to participate in the hearing, including parties, counsel and witnesses, is expected to review the Tribunal’s Video Hearing Guide, available on the Tribunal’s website.

Requirements Before the Hearing

9. The parties exchanged signed Affidavits of Documents (together with production briefs of the documents) on April 28, 2021.

10. Discoveries were completed on April 21, 2021.

11. All undertakings provided at the Examination for Discovery of the parties were answered on or before July 28, 2021.

12. A party who intends to call witnesses, whether by summons or not, shall provide to the Tribunal and the other parties a list of the witnesses and the order in which they will be called. This list must be delivered on or before ninety (90) days before the hearing and in accordance with paragraph 22 below. A party who intends to call an expert witness must include a copy of the witness’ Curriculum Vitae and the area of expertise in which the witness is prepared to be qualified.

13. Expert witnesses in the same field shall have a meeting on or before sixty (60) days before the hearing and use best efforts to try to resolve or reduce the issues for the hearing. Following the experts’ meeting the parties must prepare and file a Statement of Agreed Facts and Issues with the OLT case co-ordinator on or before thirty (30) days before the hearing.

14. An expert witness shall prepare an expert witness statement, which shall list any reports prepared by the expert, or any other reports or documents to be relied on at the hearing. Copies of this must be provided as in paragraph 17 below. Instead of a witness statement, the expert may file his or her entire report if it contains the required information. If this is not done, the Tribunal may refuse to hear the expert’s testimony.

15. Expert witnesses who are under summons but not paid to produce a report do not have to file an expert witness statement; but the party calling them must file a brief outline of the expert’s evidence as in paragraph 17 below. A party who intends to call a witness who is not an expert must file a brief outline of the witness’ evidence, as in paragraph 17 below.

16. To the extent that expert witness statements have not already been exchanged, on or before sixty (60) days before the hearing, the parties shall provide copies of their expert witness statements to the other parties and to the OLT case co-ordinator and in accordance with paragraph 26 below.

17. On or before sixty (60) days before the hearing, a participant shall provide copies of their written participant statement to the other parties in accordance with paragraph 26 below. A participant cannot present oral submissions at the hearing on the content of their written statement, unless ordered by the Tribunal.

18. On or before fifteen (15) days before the hearing, the parties shall provide copies of their visual evidence to all of the other parties in accordance with paragraph 26 below. If a model will be used, all parties must have a reasonable opportunity to view it before the hearing.

19. Parties may provide to all other parties and the OLT case co-ordinator a written response to any written evidence on or before thirty (30) days after the evidence is received and in accordance with paragraph 26 below.

20. The parties shall cooperate to prepare a joint document book which shall be shared with the OLT case co-ordinator on or before ten (10) days before the hearing.

21. Any documents which may be used by a party in cross examination of an opposing party’s witness shall be password protected and only be accessible to the Tribunal and the other parties if it is introduced as evidence at the hearing, pursuant to the directions provided by the OLT case co-ordinator, on or before the first day of the hearing.

22. A person wishing to change written evidence, including witness statements, must make a written motion to the Tribunal. See Rule 10 of the Tribunal’s Rules with respect to Motions, which requires that the moving party provide copies of the motion to all other parties 15 days before the Tribunal hears the motion.

23. A party who provides written evidence of a witness to the other parties must have the witness attend the hearing to give oral evidence, unless the party notifies the Tribunal at least 7 days before the hearing that the written evidence is not part of their record.

24. The parties shall prepare and file a preliminary hearing plan with the Tribunal on or before seven (7) days before the hearing with a proposed schedule for the hearing that identifies, as a minimum, the parties participating in the hearing, the preliminary matters (if any to be addressed), the anticipated order of evidence, the date each witness is expected to attend, the anticipated length of time for evidence to be presented by each witness in chief, cross-examination and re-examination (if any) and the expected length of time for final submissions. The parties are expected to ensure that the hearing proceeds in an efficient manner and in accordance with the hearing plan. The Tribunal may, at its discretion, change or alter the hearing plan at any time in the course of the hearing.

25. All filings shall be submitted electronically and in hard copy. 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.

26. 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.

This Member is [not] seized.

So orders the Tribunal.

BEFORE:

Name of Member:

Date:

TRIBUNAL REGISTRAR

Attachment 1

Party Newgen Restaurant Services Inc. (o/a Smith Bros. Steakhouse Tavern)

Party Status Claimant

Counsel / Representative Rayman Beitchman LLP 250 Yonge Street, Suite 2200 PO Box 4 Toronto, Ontario M5B 2L7 Shane Rayman (LSO #44649V) T: 416.597.5406 F: 437.222.9001 shane@rbllp.com Conner Harris (LSO #66645E) T: 416.597.5422 conner@rbllp.com

Party Metrolinx

Party Status Respondent

Counsel / Representative M&H LLP 61A Jarvis St., Suite 200 Toronto, ON M5C 2H2 Christel Higgs (LSO #53408T) Tel:416.947.6701 Fax: 416.947.6703 christel@mhlawyers.ca Jessica Karban (LSO #75541D) Tel: 416.947.6700 ext. 212 jessica@mhlawyers.ca

Attachment 2

OLT File No: LC200025

ONTARIO LAND TRIBUNAL

IN THE MATTER OF THE EXPROPRIATIONS ACT, R.S.O. 1990, c. E-26

AND IN THE MATTER OF AN ARBITRATION

B E T W E E N:

NEWGEN RESTAURANT SERVICES INC. (O/A SMITH BROS. STEAKHOUSE TAVERN)

Claimant

• and -

METROLINX

Respondent

ISSUES LIST

1. The issues will be those as set out in the pleadings of the parties.